United States v. Henry

United States Court of Appeals
For the First Circuit

No. 15-2487

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTOPHER HENRY,

Defendant, Appellant.

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

[Hon. Denise J. Casper, U.S. District Judge]

Before

Thompson and Kayatta, Circuit Judges,
and Barbadoro,* District Judge.

Christine DeMaso, Assistant Federal Public Defender, with
whom the Federal Defender Office was on brief, for Appellant.
Vijay Shanker, Attorney, United States Department of Justice,
Criminal Division, Appellate Section, with whom Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Carmen M. Ortiz, United States
Attorney, Glenn A. Mackinlay, Assistant United States Attorney,
and John Albert Wortmann, Jr., Assistant United States Attorney,
were on brief, for Appellee.

January 18, 2017

* Of the District of New Hampshire, sitting by designation.
 BARBADORO, District Judge. Christopher Henry was

convicted after a trial of possession of crack cocaine with intent

to distribute. He claims on appeal that the district court

erroneously failed to suppress text messages the police obtained

from his cell phone pursuant to a search warrant. He also faults

the district court for admitting evidence of his prior drug

conviction, allowing a police officer to provide inadmissible

expert testimony, and failing to instruct the jury on the lesser

included offense of simple possession. We affirm.

I. BACKGROUND

A. The Crimes

May 29, 2014, was the three-year anniversary of the death

of a Boston-area gang member, and the police were informed that

his family would be holding a memorial gathering at their home

that night. Concerned that the event might spark violence, two

police officers were dispatched to patrol the neighborhood in a

car that was unmarked but that could be identified as a police

vehicle based on its make, model, and accessories. As the officers

drove toward the address where the gathering was expected, they

saw two men standing on the sidewalk. When they drove past, one

of the men, later identified as Henry, appeared shocked.

Suspicious, the officers stopped and reversed toward the men. Upon

seeing the car reverse, Henry and the other man took off running.

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 The officers gave chase, one by foot and one by car.

Henry momentarily eluded the officer on foot by jumping over a

fence and running through a schoolyard marked with "no trespassing"

signs. The officer then glimpsed Henry running into the yard of

a nearby home. He followed Henry into the yard and saw him facing

another fence, topped with barbed wire. The officer identified

himself, ordered Henry to the ground, frisked him, and arrested

him for trespassing. A gun was subsequently found in the driveway

of the home on the other side of the fence from where Henry was

arrested.

The second man, later identified as Dwayne Leaston-

Brown, ran around the side of the school building and disappeared

from view. He was eventually found sitting on the steps of the

same home where the gun was found. A second gun, bearing Leaston-

Brown's fingerprints, was discovered next to the school building

along the path he followed as he fled from the police.

Henry was taken to the police station following his

arrest where he was booked and thoroughly searched. A search of

his pants produced a cell phone and $830 in cash, denominated

mostly in $20 bills. Underneath his pants, Henry was wearing a

pair of basketball shorts. A search of the shorts produced 21

individually packaged rocks of crack cocaine and two loose rocks,

amounting to approximately three grams.

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 The police later applied for and received a warrant to

search Henry's cell phone. The search yielded coded text messages

that appeared to reference drug sales. Henry was ultimately

indicted for possession of crack cocaine with intent to distribute

based on the cocaine the police found during the search at the

police station, and possession of a firearm by a convicted felon

based on the gun the police discovered in the driveway of the home

across the fence from where he was arrested.

B. Proceedings Below

Henry moved to suppress the text messages obtained from

the cell phone search on the ground that the search warrant

application failed to establish probable cause. In rejecting

Henry's motion, the district court relied on the quantity and

packaging of the drugs and the large amount of cash Henry was

carrying, the discovery of the gun nearby, and the fact that Henry

was carrying the cell phone at the time of his arrest. The court

also gave weight to the affiant's training and experience, which

led him to conclude that cell phones are critical tools of the

modern drug trade. Alternatively, the court determined that the

text messages should not be suppressed even if the search was not

supported by probable cause because the police relied in good faith

on the search warrant when they conducted the search.

The government filed a motion in limine prior to trial

asking the court to admit evidence of Henry's 2012 state court

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conviction for possession of crack cocaine with intent to

distribute. Henry challenged the government's motion by arguing

that evidence of his past criminal conduct was inadmissible

propensity evidence that should be excluded under Rules 404(b) and

403 of the Federal Rules of Evidence. In rejecting Henry's

arguments, the district court concluded that Henry's prior

criminal conduct was admissible under Rule 404(b) to prove intent

and modus operandi. The court also refused to exclude the prior

conviction evidence pursuant to Rule 403 because its probative

value was not substantially outweighed by the danger of unfair

prejudice. When the prior conviction evidence was later admitted

at trial, the court instructed the jury that it could consider the

evidence to the extent that it was relevant in proving intent or

modus operandi, but the fact that Henry may have committed a prior

crime did not prove that he committed either of the charged crimes.

The court also rejected Henry's effort at trial to block

the government from offering certain expert testimony by a police

officer. The officer testified that he had experience

investigating drug trafficking as a member of the Drug Control

Unit of the Boston Police Department, where he had participated in

over 100 drug buys, listened to wiretapped conversations, and

instructed other officers on drug trade practices. During the

trial, he testified that texts on Henry's cell phone containing

terminology such as "flav," "dub," "hard," "plays," "bus[t]ing a

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move," and "7 to a 14 lg" referred to drug transactions. These

opinions were inadmissible, Henry argued, because they were

speculative or within the ken of the average juror. The officer

also opined that, "looking at everything, the large amount of

money, looking at the booking sheet without any employment,

apparently, the large amount of drugs, the way that they're

packaged, all similar in size and packaging, . . . putting it all

together, in [his] opinion, these drugs were packaged for sale."

Henry claimed that this opinion should be excluded pursuant to

Rule 704(b) of the Federal Rules of Evidence as an impermissible

opinion on intent.

Henry's primary theory of defense was that the officers

lied in claiming that they had found drugs on him during the

search. He also sent mixed signals as to whether he planned to

challenge the government's contention that he possessed the drugs

with an intent to distribute. Prior to trial, he informed the

court that he would be contesting possession but not intent. He

stated in his opening statement that "[i]t may very well be that

the packaging and the amount of cocaine in those bags was intended

for distribution, but what you're going to learn is that Henry

didn't possess it." He also submitted a proposed jury instruction

prior to trial, however, that asked the court to instruct the jury

on the lesser included offense of simple possession.

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 The day before closing arguments, Henry renewed his

request for a simple possession instruction. Although the judge

agreed to consider the issue further, she told Henry that he should

assume that she would not give his proposed instruction. The next

morning, the judge informed counsel that she had looked into case

law and determined that it would not be rational for a jury to

find simple possession. On that basis, she told counsel that she

would not give a lesser included instruction. She also stated,

"Counsel, your objection as to that is noted for the record."

Before bringing in the jury, the judge again stated, "I'm not going

to give the lesser included instruction, and I addressed that on

the record."

The jury instructions were split into two parts: the

jury was given preliminary instructions, each party gave its

closing argument, and then the jury was given the remaining

instructions, which did not include a charge on simple possession.

Following this last set of instructions, the judge met with counsel

at sidebar. The government stated that it did not object to the

charge, and Henry's counsel declared that there was "[n]othing

from . . . the defense."

The jury convicted Henry of the drug charge, but

acquitted him of the firearm charge. This appeal followed.

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 II. ANALYSIS

Henry challenges his conviction by claiming that (1) the

warrant authorizing the search of his cell phone was not supported

by probable cause; (2) the court erred in admitting evidence of

his prior drug conviction; (3) a police expert was permitted to

offer inadmissible opinion testimony; and (4) Henry was entitled

to a jury instruction on the lesser included offense of simple

possession. We address each argument in turn.

A. The Search of Henry's Cell Phone

Henry first challenges the denial of his motion to

suppress the evidence obtained from his cell phone. Although his

opening brief argues that the warrant to search his cell phone was

not supported by probable cause, it inexplicably fails to address

the district court's alternative basis for denying the suppression

motion: that, even if probable cause was lacking, the good-faith

exception to the exclusionary rule applied. See United States v.

Leon, 468 U.S. 897, 920–23 (1984). By failing to address the good-

faith exception in his opening brief, Henry waived any argument

that it is inapplicable in his case. See United States v. Casey,

825 F.3d 1, 12 (1st Cir. 2016) ("[A]rguments raised for the first

time in an appellate reply brief [are] ordinarily deemed waived.

. . ."); United States v. Stevens, 380 F.3d 1021, 1024–25 (7th

Cir. 2004) (concluding that defendant waived argument that good-

faith exception did not apply where defendant's opening brief

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argued that affidavit in search warrant application failed to

establish probable cause but "failed to attack the court's

alternative holding that the evidence seized was admissible under

the good-faith exception to the exclusionary rule"); see also

United States v. Fox, 363 F. App'x 375, 376-77 (6th Cir. 2010)

(unpublished) (same).

Henry concedes that his failure to address the good-

faith exception in his opening brief waived that argument, but

implores us to excuse his waiver. We decline to do so. No

extraordinary circumstance explains Henry's failure to address

this issue. Instead, this is a garden-variety failure to raise an

argument in an opening brief, and excusing Henry's failure in these

circumstances would turn our venerable raise-or-waive rule into a

toothless tiger.

Henry's failure to preserve for our review any challenge

to the district court's alternative basis for denying the motion

to suppress leaves us no choice but to affirm. See Fox, 363 F.

App'x at 377 ("Since the district court's ruling on the good faith

exception sufficed to justify its denial of Fox's motion to

suppress, Fox's failure to appeal that aspect of the court's

decision means the denial of the motion still stands."); cf.

Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29–30

(1st Cir. 2015) (explaining that "[o]ur precedent is clear: we do

not consider arguments for reversing a decision of a district court

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when the argument is not raised in a party's opening brief" and

applying that rule where "the opening brief present[ed] no argument

at all challenging [the] express grounds upon which the district

court prominently relied in entering judgment"). Because we affirm

the denial of the motion to suppress solely on the basis of Henry's

waiver, we need not — and therefore do not — express any opinion

on whether the warrant was supported by probable cause or whether

the good-faith exception applies in this case.

B. Henry's Prior Drug Conviction

A proposal by the government to introduce evidence of a

defendant's prior criminal conduct is subject to a two-part test.

See United States v. Hicks, 575 F.3d 130, 142 (1st Cir. 2009).

"First, a court must ask whether the proffered evidence has a

'special' relevance, i.e., a non-propensity relevance." Id. Under

Rule 404(b), "[e]vidence of a crime . . . is not admissible to

prove a person's character in order to show that on a particular

occasion the person acted in accordance with the character." Fed.

R. Evid. 404(b)(1). But such evidence "may be admissible for

another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident." Fed. R. Evid. 404(b)(2). If prior crime

evidence has special relevance under Rule 404(b), the court must

move on to consider whether the evidence should nevertheless be

excluded under Rule 403. Hicks, 575 F.3d at 142. Rule 403 provides

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that "[t]he court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of . . . unfair

prejudice." Fed. R. Evid. 403. We review the district court's

admission of a prior conviction under Rules 404(b) and 403 for an

abuse of discretion. See United States v. Gemma, 818 F.3d 23, 35

(1st Cir. 2016).

Henry claims that his prior drug conviction was relevant

only to prove that he had a propensity to sell drugs. Thus, he

argues that the evidence should have been excluded pursuant to

Rule 404(b). In the alternative, he contends that the court should

have excluded the evidence pursuant to Rule 403 because its

prejudicial effect substantially outweighed its probative value.

We find that the district court did not abuse its discretion in

admitting the prior conviction.

Rule 404(b)(2) specifically permits the admission of a

prior conviction to prove intent, and we have repeatedly upheld

the admission of prior drug dealing by a defendant to prove a

present intent to distribute. See, e.g., United States v. Manning,

79 F.3d 212, 217 (1st Cir. 1996) (finding no abuse of discretion

because "when charges of drug trafficking are involved, this

[C]ourt has often upheld the admission of evidence of prior

narcotics involvement to prove knowledge and intent. . . . The

evidence that Manning had previously sold cocaine makes it more

likely . . . that he intended to distribute the two bags of

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cocaine."); United States v. Nickens, 955 F.2d 112, 124–25 (1st

Cir. 1992) (collecting cases) ("[T]his circuit has repeatedly held

that a prior involvement with drugs is admissible to prove

knowledge and intent. . . . [T]he jury may have [permissibly]

inferred that persons who have distributed cocaine in California,

are more likely than those who have not, to want to import cocaine

from Ecuador."); United States v. Doe, 741 F.3d 217, 230 (1st Cir.

2013) (citing Manning and noting that prior drug sale "makes it

more likely" that defendant intended to sell drugs on later

occasion); see also, e.g., United States v. Robinson, 809 F.3d

991, 997 (8th Cir. 2016) (noting that prior conviction for drug

distribution is admissible under Rule 404(b) to show intent to

commit later charge of conspiracy to distribute drugs); United

States v. Lee, 573 F.3d 155, 166 (3d Cir. 2009) ("Lee's prior drug

trafficking conviction was properly admitted as evidence that Lee

intended to distribute any drugs in his possession.").

Henry attempts to distinguish these cases by noting that

his theory of defense centered on possession rather than intent.

A defendant's failure to argue lack of knowledge or intent,

however, does not "remove those issues from the case." United

States v. Pelletier, 666 F.3d 1, 6 (1st Cir. 2011) (quoting United

States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir. 1990)). The

burden of proving intent remained on the government, even though

Henry did not aggressively litigate the issue, and Henry's prior

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conviction had probative value in establishing this element of the

charged offense. Accordingly, the district court did not abuse

its discretion in ruling that the prior-conviction evidence

qualified under the intent exception to Rule 404(b).

We pause to note that this conclusion is compelled by

the combination of our deferential standard of review and our

precedent. The government appears to argue that evidence of a

prior drug distribution offense is always relevant under Rule

404(b) to show knowledge and intent in a prosecution for possession

of a controlled substance with intent to distribute. As the

concurring opinion explains, this across-the-board position seems

to overlook that, in many cases, impermissible propensity

reasoning lurks as one of the links in the logical chain of

relevance. Although we discern no abuse of discretion in this

case given our precedent, we encourage district court judges to

carefully consider the proponent's assertion of why a prior

conviction has special relevance and examine whether, in the

particular case-specific circumstances, the proponent is simply

attempting to disguise propensity evidence by artificially

affixing it with the label of a permitted Rule 404(b)(2) purpose.

Unlike Rule 404(b), which focuses exclusively on whether

prior bad act evidence has "special relevance," Rule 403 requires

a balancing of probative value and prejudicial effect. When

assessing the probative value of evidence under Rule 403, a court

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must consider both whether the evidence has been offered to prove

an issue that is in genuine dispute, and whether the evidentiary

point can be made with other evidence that does not present a risk

of unfair prejudice. See United States v. Ford, 839 F.3d 94, 109–

10 (1st Cir. 2016); United States v. Varoudakis, 233 F.3d 113,

122–24 (1st Cir. 2000). On the other side of the scale, similarity

between the defendant's prior criminal conduct and the charged

offense, which may support a finding of "special relevance" under

Rule 404(b), increases the risk that the jury will draw an improper

inference of propensity that unfairly prejudices the defendant's

case. Varoudakis, 233 F.3d at 123. In cases such as Henry's,

where a prior drug conviction is offered to prove an intent to

distribute drugs on a different occasion, the risk that the jury

will use the conviction to infer criminal propensity is especially

strong. Courts thus must be alert to this danger when they weigh

the prejudicial effect of evidence against its probative value.

In the present case, although Henry did not make the

absence of an intent to distribute the centerpiece of his defense,

he did raise the issue by seeking a lesser included offense

instruction for simple possession. Under these circumstances, the

government was entitled to marshal all of its evidence on the issue

of intent, including evidence of Henry's prior criminal

conviction, in an effort to demonstrate that the evidence on that

element was sufficient to prevent Henry from obtaining a jury

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instruction on a reduced charge. Moreover, although the similarity

between Henry's prior drug conviction and the charged drug crime

presents a risk that the jury might draw an impermissible inference

of propensity, the court addressed that risk with a limiting

instruction. Given this instruction, the sufficiency of which

Henry did not challenge, we cannot say that the district court

abused its discretion in rejecting Henry's claim that the

prejudicial effect of the prior crime evidence substantially

outweighed its probative value. In short, this is not the rare

case where we are prepared to second-guess the district court's

Rule 403 analysis.

Having determined that the district court properly

admitted evidence of Henry's past criminal conduct to prove intent,

we need not determine whether the same evidence could have been

admitted independently to prove modus operandi. Instead, the real

issue is whether the district court committed reversible error in

instructing the jury that evidence that was properly admitted for

one purpose could also be considered for a different, arguably

inadmissible, purpose. Errors of this sort are harmless if it is

"highly probable that the error did not influence the verdict."

Hicks, 575 F.3d at 143 (quoting United States v. Roberson, 459

F.3d 39, 49 (1st Cir. 2006)).

Here, the record contains ample evidence to support the

verdict. Moreover, as we have explained, the court permissibly

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admitted Henry's prior conviction for a different purpose and

instructed the jury that it could not be used to infer criminal

propensity. Nothing in the facts or argument at trial pointed to

a finding of modus operandi as a pathway to a guilty verdict that

was not far more likely to have been provided by a finding of

intent. Under these circumstances, if the court erred in

instructing the jury that it could also consider Henry's prior

conviction as evidence of modus operandi, the error was harmless.

Cf. United States v. Levy-Cordero, 67 F.3d 1002, 1011 (1st Cir.

1995) (erroneous instruction that jury could consider prior bad

act evidence to show intent or knowledge was harmless where

evidence was admissible to show consciousness of guilt).

C. Expert Witness Testimony

Henry complains that the district court improperly

admitted expert testimony from a police officer. We review the

court's rulings on this issue for abuse of discretion. See United

States v. Jordan, 813 F.3d 442, 445 (1st Cir. 2016), cert. denied,

136 S. Ct. 2528 (2016); United States v. Schneiderhan, 404 F.3d

73, 81 (1st Cir. 2005).

"[W]e have long held that government witnesses with

experience in drug investigations may explain the drug trade and

translate coded language for juries, either through lay or, if

qualified, expert testimony." United States v. Rosado-Pérez, 605

F.3d 48, 56 (1st Cir. 2010). "This [C]ourt has repeatedly found

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no abuse of discretion in the admission of . . . expert testimony

to explain the typical methods of drug dealers." United States v.

Monell, 801 F.3d 34, 45 (1st Cir. 2015). This is because police

officers' interpretations of the jargon used within criminal

circles may "give the jury the benefit of an independent body of

specialized knowledge." United States v. Albertelli, 687 F.3d

439, 446 (1st Cir. 2012). Officers may also interpret the slang

terminology used by drug dealers. United States v. Santiago, 566

F.3d 65, 69 (1st Cir. 2009).

Notwithstanding this formidable body of precedent, Henry

presents two challenges to the police expert's testimony. First,

he argues that the court violated Rule 704(b) of the Federal Rules

of Evidence by allowing the expert to express an opinion as to

whether Henry possessed the drugs with an intent to distribute.

Second, he argues that the court should have barred the expert

from interpreting his text messages because the expert's

interpretations were either speculative or within the ken of the

jury. We find no reversible error.

1. Rule 704(b) Claim

Rule 704(b) provides that "[i]n a criminal case, an

expert witness must not state an opinion about whether the

defendant did or did not have a mental state or condition that

constitutes an element of the crime charged." Fed. R. Evid.

704(b). "Those matters are for the trier of fact alone." Id.

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Here, Henry concedes that the police expert "did not explicitly

state that he believed that Henry had the intent to distribute

drugs." Instead, he argues that "the import of" the testimony was

improper because it implied that Henry acted with culpable intent.

Henry focuses on the following exchange during direct examination:

Q. Sir, do you have an opinion based on your training
and experience considering all of the evidence in this
particular case and the reports that you read and your
conversations you've had as to whether it is consistent
with the [sic] distribution or personal use?

A. Yes. It's my opinion, looking at everything, the
large amount of money, looking at the booking sheet
without any employment, apparently, the large amount of
drugs, the way that they're packaged, all similar in
size and packaging, also looking at — you know, putting
it all together, in my opinion, these drugs were packaged
for sale.

According to Henry, the expert's opinion that "these drugs were

packaged for sale" was impermissible under Rule 704(b) because it

implies an answer to a question that is reserved exclusively for

the jury.

We conclude that the district court did not abuse its

discretion in admitting the expert's opinion. Rule 704(b) bars a

witness from characterizing the defendant's intent, but it "does

not, however, apply to 'predicate facts from which a jury might

infer such intent.'" United States v. Peña-Santo, 809 F.3d 686,

694 (1st Cir. 2015) (quoting Schneiderhan, 404 F.3d at 81),

petition for cert. docketed sub nom. Gil-Martínez v. United States,

No. 16-6836 (U.S. Nov. 14, 2016). In this case, the expert

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grounded his opinion that the drugs were packaged for sale on his

general knowledge of criminal practices and the circumstantial

evidence bearing on the issue of intent that was produced during

the trial. He did not attempt to offer any special insight as to

Henry's actual mental state. Accordingly, the expert's testimony

is consistent with prior precedent, which recognizes that a

qualified expert does not violate Rule 704(b) by expressing an

opinion as to whether predicate facts are consistent with drug

distribution rather than mere possession. See United States v.

Valle, 72 F.3d 210, 216 (1st Cir. 1995). Even if the jury

interpreted the expert's testimony to be responsive to the

prosecutor's question and not merely to be an opinion about how

the drugs were packaged, as Henry posits, the phrasing of that

question was permissible. We have upheld expert testimony that

certain facts were "consistent with" distribution. See id.

2. Text Messages

As recounted above, our cases make it clear that a

qualified expert may opine as to the meaning of criminals' coded

communications. See, e.g., Rosado-Pérez, 605 F.3d at 55–56;

Albertelli, 687 F.3d at 446; Santiago, 566 F.3d at 69. Henry does

not ask us to overrule our precedents, nor does he contest the

officer's qualifications as an expert. Rather, he argues that

"[t]he messages contain perhaps two words ('hard' and 'flav') that

could be considered specialized language requiring some

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explanation." The remaining messages, he contends, "were normal,

uncoded language that the jurors could read and interpret on their

own." We find no abuse of discretion.

First, many of the text messages contain specialized

language whose meaning an expert might helpfully illuminate. For

example, the words "flav" and "dub" are jargon inaccessible to

many jurors. See Santiago, 566 F.3d at 68-69 (interpreting "chef

it up" as slang for "converting cocaine into crack"). Similarly,

the use of ordinary words — e.g., "hard," "work," "plays," "7 to

a 14 lg," and "bus[t]ing a couple moves" — in an idiosyncratic way

rendered them meaningless to laypersons. The witness shed light

on contextual meanings for these words, which undoubtedly

"help[ed] the trier of fact to understand the evidence or to

determine a fact in issue." See Fed. R. Evid. 702(a).

Second, the officer's interpretation of other text

messages that did not contain obscure jargon was nonetheless

permissible because he drew upon his expertise in explaining the

relevance of the communications in the drug trade. For example,

he discussed an exchange in which Henry's interlocutor indicates

that Henry has several cell phones and asks to borrow one. The

officer drew upon his extensive experience in explaining the

significance of this exchange, by noting that dealers often use

multiple phones, each for a different purpose. Such explanations

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are based upon his expertise and are helpful to the jury, which

may be unaware of the inner workings of the drug trade.

Third, any danger posed by the testimony was

substantially mitigated by cross-examination and the district

court's limiting instruction. Once an expert testifies, "[f]rom

that point forward, the credibility and weight of the expert's

opinion [is] for the factfinder." Jordan, 813 F.3d at 446. The

jury's task is to "independently evaluate [his] interpretations,"

and the defendant's task is to "exhaustively cross-examine[] [the

witness] about possible alternative interpretations." See Rosado-

Pérez, 605 F.3d at 56. Here, Henry sought to undermine the

witness's testimony by cross-examining him on alternative

interpretations. For example, Henry effectively cross-examined

the witness on the meaning of "bus[t]ing a move" by prompting the

officer to recall the lyrics of a popular song that uses the same

phrase in a manner unrelated to drug dealing. The danger posed by

questionable testimony was also mitigated by the district court's

instruction to the jury that it should weigh the evidence

independently. See Albertelli, 687 F.3d at 448-49.

For these reasons, the district court did not commit

reversible error in allowing the police expert to testify.

D. Lesser Included Instruction

Henry faults the district court for failing to instruct

the jury on the lesser included offense of simple possession. We

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review a district court's failure to give a properly requested

jury instruction de novo, but examine an unpreserved request only

for plain error. United States v. Meadows, 571 F.3d 131, 145–46

(1st Cir. 2009). Before turning to the merits of Henry's argument,

we first consider the government's contention that the court's

failure to instruct the jury on simple possession is subject to

plain error review because Henry failed to renew his objection

with the court after the charge was read.

1. Failure to Properly Object

Rule 30 of the Federal Rules of Criminal Procedure

requires a party who objects to the court's failure to give a

proposed instruction to inform the court of his objection "before

the jury retires to deliberate." Fed. R. Crim. P. 30(d). The

text of Rule 30(d) is silent regarding the earliest point at which

a party may object so as to preserve the issue for appeal, but our

decisions have ordinarily required the appellant to renew his

objection after the jury has been charged when the court has given

the parties that opportunity. See Gemma, 818 F.3d at 38; Meadows,

571 F.3d at 146; United States v. O'Connor, 28 F.3d 218, 221 (1st

Cir. 1994). We have also determined that this rule is "binding on

both the court and attorney and that a statement by the court

'after the charge that objections made prior to it will be saved

does not absolve the attorney from following the strictures of the

rule.'" O’Connor, 28 F.3d at 221 (quoting Poulin, 18 F.3d at 982).

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 Henry attempts to avoid this precedent by invoking our

decision in United States v. Kaplan, 832 F.2d 676, 682 (1st Cir.

1987). Kaplan, however, cannot save Henry from failing to properly

preserve his objection. Unlike in this case, the defendant in

Kaplan renewed his request for an instruction following the jury

charge, but simply did not "repeat the magic word 'objection.'"

See Kaplan, 832 F.2d at 682. Finding that our precedents did not

require the strict use of that word, we determined that the

objection had been preserved. See id. Here, in contrast, Henry

did not make any attempt to preserve his objection after the charge

was read.

Henry also correctly notes that there are circumstances

where "a court should not require a lawyer 'to persist stubbornly

when the judge has made it perfectly clear that he does not wish

to hear what the lawyer has to say.'" United States v. Fernández-

Garay, 788 F.3d 1, 4 (1st Cir. 2015) (quoting United States v.

Toribio-Lugo, 376 F.3d 33, 41 (1st Cir. 2004)). Henry, however,

did not face those circumstances. He cannot plausibly argue that

he "had no reasonable opportunity" to object. Cf. Fernández-

Garay, 788 F.3d at 4 (Rule 51 objection preserved where judge

abruptly cut short defense counsel and forbade him from

continuing). Immediately following the jury charge, but before

deliberations, the district court invited counsel to sidebar. The

prosecution informed the court that it had "no objection" to the

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instructions, and Henry stated that there was "[n]othing from . .

. the defense." Henry was required to object here. After being

invited to sidebar, he would not have "affront[ed] the court or

prejudice[d] the jury beyond repair" by respectfully renewing his

objection. See Toribio-Lugo, 376 F.3d at 41 (quoting Douglas v.

Alabama, 380 U.S. 415, 422 (1965)).

In the present case, the district court invited the

parties to approach the bench after it completed its instructions

in an obvious effort to permit the parties to register their

objections to the jury charge. Henry did not present any

objections in response to this invitation. Accordingly, his claim

that the court erred in failing to instruct the jury on simple

possession is reviewed only for plain error. See Meadows, 571

F.3d at 146.

2. Simple Possession Instruction

A failure by the district court to give a proposed jury

instruction will qualify as plain error only if the defendant

demonstrates that "(1) an error occurred; (2) which was clear or

obvious; and both (3) affected [his] substantial rights; and (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." Gemma, 818 F.3d at 30 (alteration in

original) (quoting United States v. Laureano-Pérez, 797 F.3d 45,

60 (1st Cir. 2015)). "This standard is exceedingly difficult to

satisfy in jury instruction cases: '[T]he plain error hurdle, high

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in all events, nowhere looms larger than in the context of alleged

instructional errors.'" Meadows, 571 F.3d at 145 (quoting United

States v. González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006)).

Henry cannot satisfy the plain error test because he is

unable to show that his substantial rights were affected by the

court's refusal to instruct on simple possession. To satisfy this

requirement, a defendant must establish "a reasonable probability

that, but for [the error claimed], the result of the proceeding

would have been different." United States v. Rodríguez, 735 F.3d

1, 11 (1st Cir. 2013) (alteration in original) (quoting United

States v. Hebshie, 549 F.3d 30, 44 (1st Cir. 2008)). Henry fails

to present a persuasive argument that the jury might have acquitted

him of the possession with intent to distribute charge if it had

been instructed on the lesser included offense of simple possession

given that: the record contains no affirmative evidence that Henry

possessed the drugs for personal use; Henry's intent to distribute

was minimally contested and nearly conceded at trial; the quantity

of drugs Henry carried was consistent with an intent to distribute;

Henry was carrying a large amount of cash denominated at the street

purchase price for crack cocaine; and Henry's text messages

suggested that he was a dealer of drugs rather than a mere user.

Accordingly, the district court did not commit plain error in

refusing to instruct on the lesser included offense of simple

possession. Cf. United States v. Henson, 945 F.2d 430, 440-41

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(1st Cir. 1991) (holding that failure to give lesser included

offense instruction was not "error of sufficient magnitude to

overcome the 'high hurdle' interposed by the plain error rule"

where uncontroverted evidence was sufficient to establish

additional elements of greater offense).1

III. CONCLUSION

For the reasons stated, Christopher Henry's conviction

and sentence are affirmed.

- Concurring Opinion Follows -

1
The district court enhanced Henry's sentence based on a
finding by a preponderance of the evidence that he possessed a gun
during the commission of his drug crime. Henry complains that the
enhancement violated his constitutional rights under the Fifth and
Sixth Amendments because it was based on acquitted conduct. We
decline to consider this argument because, as Henry acknowledges,
his argument is foreclosed by Supreme Court and First Circuit case
law. See United States v. Watts, 519 U.S. 148, 149 (1997) (per
curiam); United States v. Alejandro-Montañez, 778 F.3d 352, 361
(1st Cir. 2015).

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 KAYATTA, Circuit Judge, with whom THOMPSON, Circuit

Judge, joins, concurring. Because the court's opinion well

marshals our controlling precedent in support of its conclusions,

I join in full. I write separately only to note that the admission

of evidence of a prior conviction to establish the "intent" of the

defendant in connection with the offense being tried can become

indistinguishable from the admission of evidence of a prior

conviction to prove a propensity to commit that type of crime.

The opinion for the court relies on our prior opinion in

United States v. Manning, 79 F.3d 212, 217 (1st Cir. 1996) to

approve the admission of a prior drug distribution conviction to

prove the element of intent in this later drug distribution case.

There is reason to think, though, that the inference that Manning

licensed in this case, and in drug cases of this sort, is contrary

to Federal Rule of Evidence 404(b). See United States v. Miller,

673 F.3d 688, 699 (7th Cir. 2012) ("How, exactly, does [the

defendant's] prior drug dealing conviction in 2000 suggest that he

intended to deal drugs in 2008? When the question is framed this

way, the answer becomes obvious, even though implicit: 'He

intended to do it before, ladies and gentlemen, so he must have

intended to do it again.' That is precisely the forbidden

propensity inference."); United States v. Turner, 781 F.3d 374,

390–91 (8th Cir.) (similar), cert. denied, 136 S. Ct. 208 (2015),

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cert. denied, 136 S. Ct. 280 (2015), and cert. denied, 136 S. Ct.

493 (2015).

This case illustrates the manner in which the relevance

of a prior conviction admitted to prove "intent" under Manning may

rest on little more than propensity. In its brief, the government

did not articulate how Henry's prior conviction was relevant to

whether he intended to distribute the crack cocaine found in his

pocket on May 29, 2014. At oral argument, the government posited

that the prior conviction was relevant to Henry's intent because

the fact that Henry possessed fourteen separately packaged rocks

of crack cocaine with the intent to distribute them in March 2011

implies that he intended to distribute the twenty-one separately

packaged rocks of crack cocaine he possessed in May 2014. This

reasoning is propensity-based. It requires inferring from Henry's

prior conviction that he has the following character trait:

whenever he possesses separately packaged rocks of crack cocaine,

he intends to distribute them. That is, his propensity is to be

a seller, rather than a buyer or user. It then requires inferring

that he acted in accordance with that character trait in May 2014.

The admission of Henry's prior conviction on this line of

reasoning, although allowed by Manning, appears to run afoul of

Rule 404(b)(1), which bars the use of other acts evidence "to prove

a person's character in order to show that on a particular occasion

the person acted in accordance with the character."

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 For the foregoing reasons, one can make a good argument

for going en banc in a future case to reconsider our Rule 404(b)(1)

jurisprudence. I say "future" case because, in this particular

case, any Rule 404(b) error was harmless given the overwhelming

evidence of Henry's guilt.

The main argument for not revisiting Manning at some

point (assuming one thinks it may be wrong) is that it might not

be worth the effort, given that in drug cases of this sort, prior

convictions are often admitted for multiple reasons. For instance,

in many cases, prior convictions are admitted to show both

knowledge of the nature of a substance and intent to distribute.

See, e.g., United States v. Doe, 741 F.3d 217, 230 (1st Cir. 2013);

United States v. Pelletier, 666 F.3d 1, 6 (1st Cir. 2011); United

States v. Hicks, 575 F.3d 130, 142 (1st Cir. 2009); United States

v. Landrau-López, 444 F.3d 19, 24 (1st Cir. 2006); United States

v. Nickens, 955 F.2d 112, 123-24 (1st Cir. 1992) (collecting

cases). Commonly, there are chains of inference from a prior

conviction to knowledge that do not include propensity as a

necessary link. See, e.g., United States v. Arias-Montoya, 967

F.2d 708, 710-11 (1st Cir. 1992) (discussing several prior cases

where prior convictions were admitted on knowledge grounds);

United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir. 1990).

Overruling Manning would nevertheless have three non-

trivial effects in cases where the only inferential chains linking

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a prior conviction to intent to distribute include criminal

propensity. First, it would mean that juries in these cases would

not be instructed that they could use prior convictions to infer

intent. Second, it would mean that the relevance of a prior

conviction to intent to distribute would contribute not to the

conviction's probative value under Rule 403, but instead to the

risk of unfair prejudice. Third, it would allow defendants to

keep a prior conviction out of a case without having to stipulate

to intent to distribute. These effects would occur even in cases

where the prior conviction might be specially relevant on one of

the other grounds listed in Rule 404(b)(2).

The third of these effects can be particularly

significant. Consider, for example, a case in which a prior drug

sale is relevant to knowledge, which happens not to be an element

that the defendant desires to challenge. In Ferrer-Cruz, 899 F.2d

at 139; United States v. Garcia, 983 F.2d 1160, 1175-76 (1st Cir.

1993); and Pelletier, 666 F.3d at 6, we pointed to the possibility

that a defendant may remove an issue like knowledge from a case by

tendering an express disavowal and willingness to accept a

corresponding limitation on cross-examination and jury

instruction. While we have never had occasion to accept or reject

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such an approach directly in construing Rule 404,2 certainly the

district courts can achieve the same result on their own simply by

finding that the presence of such a disavowal and instruction shift

the Rule 403 balance against admission. Manning complicates such

an approach because it effectively requires a stipulation on intent

as well in order to eliminate fully the Rule 404(b)(2) toehold for

admitting the evidence. Of course, even under Manning, trial

courts have ample room to keep out such evidence under Rule 403

even in the absence of a stipulation on intent. As this case

shows, though, sometimes they do not exercise that discretion in

this manner.

2 The Supreme Court has held that a stipulation to felon
status, when it is an element of a charged crime, does not
eliminate the relevance of a prior conviction to that element, but
merely impairs its probative value under Rule 403. See Old Chief
v. United States, 519 U.S. 172, 179 (1997) ("[The] evidentiary
relevance [of Old Chief's prior conviction] under Rule 401 [was
not] affected by the availability of alternative proofs of the
element to which it went, such as an admission by Old
Chief . . . ."); id. at 184 ("[W]hat counts as the Rule 403
'probative value' of an item of evidence, as distinct from its
Rule 401 'relevance,' may be calculated by comparing evidentiary
alternatives."). There is room to debate both whether this
reasoning from Old Chief applies to prior convictions introduced
for one of the purposes listed in Rule 404(b)(2) and whether its
holding as to relevance applies to so-called "special relevance"
under Rule 404(b). Compare United States v. Crowder, 141 F.3d
1202, 1206-07 (D.C. Cir. 1998) (en banc), with id. at 1212-13
(Tatel, J., dissenting).

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