United States v. Valbrun

United States Court of Appeals
For the First Circuit

No. 16-1806

UNITED STATES OF AMERICA,

Appellee,

v.

JEAN TONY VALBRUN,

Defendant, Appellant.

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

[Hon. Jon D. Levy, U.S. District Judge]

Before

Barron, Selya and Stahl,
Circuit Judges.

Leslie Feldman-Rumpler on brief for appellant.
Richard W. Murphy, Acting United States Attorney, and Renée
M. Bunker, Assistant United States Attorney, Appellate Chief, on
brief for appellee.

December 15, 2017
 SELYA, Circuit Judge. Following his conviction for a

drug-trafficking offense, defendant-appellant Jean Tony Valbrun

assigns error to certain of the district court's evidentiary

rulings and to a jury instruction. Finding his asseverational

array unpersuasive, we affirm his conviction.

I. BACKGROUND

This case is one of several arising out of the activities

of a sprawling drug-distribution ring operating in Maine. As such,

it implicates one of many spokes radiating from the hub of a

conspiratorial wheel. We briefly rehearse the relevant facts and

travel of the case, directing readers who hunger for more exegetic

details about the drug-distribution ring to consult our opinion in

United States v. Gordon, 871 F.3d 35, 40-42 (1st Cir. 2017).

In 2014, Joey Brown, an agent of the Drug Enforcement

Administration (DEA), led an investigation into the activities of

Jacques Victor, the suspected kingpin of a drug-distribution ring.

During this investigation, the DEA received judicial authorization

to intercept calls and text messages to and from a number of

telephones, including Victor's cellphone. See id. at 41-42; see

also 18 U.S.C. §§ 2510-2522. Through these intercepts, the DEA

learned that Victor was plotting with Alcindy Jean-Baptiste,

Jonathan Duffaud, and the appellant to obtain drugs in

Massachusetts and transport them to Maine.

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 When the plot matured, the authorities were ready: the

appellant was arrested while driving a rental vehicle en route

from Massachusetts to Maine. Concealed within the vehicle were

225 net grams of heroin and 106.2 net grams of cocaine base (crack

cocaine).

In due course, the appellant and eleven other persons

were indicted on charges associated with the activities of the

drug ring. The appellant was, however, tried separately, on

charges of knowingly possessing with intent to distribute heroin

and crack cocaine, see 21 U.S.C. § 841(a)(1), and of aiding and

abetting the same, see 18 U.S.C. § 2(a). At trial, the government

introduced thirteen recorded calls derived from the wiretap on

Victor's cellphone. Victor (who had participated in each of the

thirteen calls) testified about these conversations, identifying

specific voices and explaining jargon and other phrases of

uncertain meaning. The appellant's principal defense was that he

did not know that the rental vehicle contained controlled

substances.

At the conclusion of the trial, the district court

instructed the jury on, inter alia, the doctrine of willful

blindness. The jury found the appellant guilty as charged. The

court subsequently sentenced him to an incarcerative term of

twenty-eight months. This timely appeal ensued.

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II. ANALYSIS

The appellant assigns error in two respects. First, he

contends that the district court erred in allowing parts of

Victor's testimony about the intercepted calls. Second, he

contends that the court erred in instructing the jury on willful

blindness. We address these contentions sequentially.

A. The Challenged Testimony.

As an initial matter, the appellant trains his fire on

the district court's admission of Victor's testimony interpreting

parts of the telephone conversations. In support, he argues that

most of the language was clear and that Victor's interpretive gloss

was neither necessary nor helpful to an understanding of the

evidence. The challenged testimony falls into two categories: in

the appellant's words, one category consisted of testimony

comprising "repetitions or explanations . . . juxtaposed with

testimony as to . . . Victor's own knowledge of facts"; the second

category consisted of testimony that "materially changed the

meaning of statements." Although the appellant attempts to paint

with a broad brush, he only articulates specific challenges to

testimony regarding three calls. We limit our inquiry accordingly.

See United States v. Albertelli, 687 F.3d 439, 448-49 (1st Cir.

2012).

A threshold problem looms: the appellant's challenges

implicate Federal Rule of Evidence 701, and the government disputes

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whether the appellant adequately preserved these objections below.

We find it unnecessary to resolve this dispute; rather, we assume,

favorably to the appellant, that his objections were preserved.

Consequently, our review is for abuse of discretion. See United

States v. Gobbi, 471 F.3d 302, 311 (1st Cir. 2006) (holding that

disputed rulings relating to admission or exclusion of evidence,

if preserved, are reviewed for abuse of discretion).

The appellant's interpretive testimony is fairly

characterized as lay opinion testimony. See, e.g., United States

v. Dunston, 851 F.3d 91, 96 (1st Cir. 2017); United States v.

Santiago, 560 F.3d 62, 66 (1st Cir. 2009). Rule 701 permits the

admission of lay opinion testimony that is "rationally based on

the witness's perception," helps the factfinder to understand "the

witness's testimony or to determin[e] a fact in issue," and does

not depend "on scientific, technical, or other specialized

knowledge within the scope of Rule 702." The district court has

"considerable discretion" in deciding whether to admit lay opinion

testimony under Rule 701. United States v. Valdivia, 680 F.3d 33,

51 (1st Cir. 2012). Even so, the rule requires exclusion "where

the witness is no better suited than the jury to make the judgment

at issue," thus "providing assurance against the admission of

opinions which would merely tell the jury what result to reach."

United States v. Vázquez-Rivera, 665 F.3d 351, 363 (1st Cir. 2011)

(quoting United States v. Meises, 645 F.3d 5, 16 (1st Cir. 2011)).

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 Here, Victor's interpretations are rationally based on

his experience and his first-hand perceptions and do not involve

"scientific, technical, or other specialized knowledge." Fed. R.

Evid. 701. The question, then, is whether the district court

abused its discretion in determining that those interpretations

would help the jury to understand what was being communicated in

the calls. In answering this question, we do not write on a

pristine page: it is settled beyond hope of contradiction that a

witness with personal knowledge of slang or jargon commonly

employed in the drug trade may, consistent with Rule 701, be

allowed to interpret ambiguous language used conversationally by

drug traffickers. See Dunston, 851 F.3d at 96; United States v.

Lizardo, 445 F.3d 73, 83 (1st Cir. 2006). It follows that a

knowledgeable coconspirator may be permitted to offer lay opinion

testimony in a drug-trafficking prosecution "as to the meanings of

'code words' used by fellow conspirators in taped conversations"

in which he participated. Lizardo, 445 F.3d at 83 (quoting United

States v. Gaines, 170 F.3d 72, 77 (1st Cir. 1999)).

In this instance, though, the appellant insists that the

language in most of the intercepted calls was clear and that

Victor's testimony was of no help in understanding the dialogue.

The district court reached a different conclusion, and our review

of the record convinces us that the court's conclusion was well

within the compass of its discretion. The calls contained a host

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of ambiguities, and Victor's testimony served not only to clarify

those ambiguities but also to provide needed context to the events

that were transpiring. For example, the participants in the calls

referred to individuals involved in the drug ring's activities

informally, and Victor was helpful to the jury in identifying the

persons to whom sobriquets such as "Dude" and "Face" referred.

See, e.g., United States v. Spencer, 873 F.3d 1, 14 (1st Cir.

2017).

We add, moreover, that the participants in the calls

used ambiguous terms to discuss what the government argues were

references to the drugs found in the car and money the appellant

would receive for transporting the drugs. For example, calls

between Victor and the appellant contained vague references to

"putting the thing," "my stuff," and "hid[ing] it well." Nor does

it seem to have been mere happenstance: Victor testified that he

often tried to "conceal [his] transaction[s]" by not explicitly

mentioning drugs. Seen in this light, it is nose-on-the-face plain

that Victor's testimony was likely to assist the jury in

understanding what was meant both by the statements he made and by

the statements he overheard. Given Victor's personal knowledge of

the vernacular favored by the conspirators,1 we conclude that the

1
We add that the members of the drug ring regularly used
Haitian Creole dialect when speaking on the intercepted calls.
See Gordon, 871 F.3d at 48-49. This is significant because
"recorded conversations in foreign languages present unique issues

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district court did not abuse its discretion in finding that his

testimony was helpful to the jury.

The appellant also asserts that exclusion of portions of

the challenged testimony was mandated because Victor misled the

jury by materially changing the meaning of recorded statements.

Properly viewed, this assertion goes to the weight of Victor's

testimony, not to its admissibility. See Robinson v. Watts Detec.

Agency, Inc., 685 F.2d 729, 739 (1st Cir. 1982) (explaining that

whether an "opinion is accurate goes to the weight of the

testimony, not its admissibility"); cf. United States v. Vega-

Figueroa, 234 F.3d 744, 755 (1st Cir. 2000) ("[T]he modern trend

favors the admission of opinion testimony provided it is well

founded on personal knowledge and susceptible to cross-

examination."). Once the court has determined that lay opinion

testimony will be helpful to the jury and satisfies the other

prerequisites of Rule 701, it is for the jury to assay the

persuasive force of that testimony. See Albertelli, 687 F.3d at

448; United States v. Paiva, 892 F.2d 148, 157 (1st Cir. 1989).

To be sure, evidence may be excluded "if its probative

value is substantially outweighed" by the danger of "misleading

for juries," who may struggle to grasp the meanings of relevant
speech idiosyncrasies or idioms. United States v. Mendiola, 707
F.3d 735, 742 (7th Cir. 2013). Because Victor was fluent in
Haitian Creole, his testimony was especially valuable in
clarifying his coconspirators' often cryptic statements.

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the jury." Fed. R. Evid. 403. Here, however, the appellant failed

to invoke Rule 403 either at trial or in his appellate briefing.

Consequently, any claim of error that hinges on the application of

this Rule would, at best, be reviewed for plain error. See United

States v. Gordon, 875 F.3d 26, 30 (1st Cir. 2017) (holding that

party's failure to specify ground of objection in district court

results in plain error review); United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990) (holding that "issues adverted to in a

perfunctory manner" in appellate briefs "are deemed waived"); see

also Fed. R. Evid. 103(a)(1)(B). There was no Rule 403 error here,

plain or otherwise.

When Rule 403 is in play, the devoir of persuasion rests

with the party urging exclusion. See United States v. Tse, 375

F.3d 148, 164 (1st Cir. 2004). The appellant has not carried this

burden: his attempts to portray Victor's testimony as misleading

are largely conclusory. The record makes manifest that Victor

offered his interpretations of certain statements based on

personal knowledge, and the appellant had a full and fair

opportunity to cross-examine him. No more is exigible when — as

in this case — the appellant has not developed any sufficient

argument indicating that the risks inherent in admitting Victor's

testimony substantially outweighed its probative value.

To say more about the challenged testimony would be

pointless. We hold, without serious question, that the district

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court did not abuse its "considerable discretion," Valdivia, 680

F.3d at 51, in allowing Victor to offer lay opinion testimony about

the meaning and purport of intercepted conversations in which he

had participated.

B. The Challenged Instruction.

This brings us to the appellant's claim that the district

court's willful blindness instruction was unwarranted. Our case

law is inconsistent concerning the standard of review that applies

where, as here, a defendant challenges the sufficiency of the

evidence undergirding a willful blindness instruction. While

older cases have reviewed for abuse of discretion, see, e.g.,

United States v. Coviello, 225 F.3d 54, 70 (1st Cir. 2000), more

recent cases have undertaken de novo review, see, e.g., United

States v. Parker, 872 F.3d 1, 14 (1st Cir. 2017). In the case at

hand, this issue is further complicated by the government's

suggestion that the appellant has not preserved this claim of

error. See Fed. R. Crim. P. 30(d); see also United States v.

Moran, 393 F.3d 1, 13 (1st Cir. 2004) (explaining that unpreserved

claims of instructional error are reviewed for plain error).

We need not unwind this procedural tangle. Given the

impeccable provenance of the challenged instruction, we simply

assume, favorably to the appellant, both that the claim of error

was duly preserved and that it engenders de novo review. Even on

such a generous set of assumptions, the claim is hopeless.

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 The doctrine of willful blindness permits the government

to prove scienter when a defendant deliberately shields himself

from apparent evidence of criminality. See Global-Tech

Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011). In effect,

the law treats "persons who know enough to blind themselves to

direct proof of critical facts" as having "actual knowledge of

those facts." Id.; see United States v. Singh, 222 F.3d 6, 11

(1st Cir. 2000). A willful blindness instruction is justified if

"(1) a defendant claims a lack of knowledge, (2) the facts suggest

a conscious course of deliberate ignorance, and (3) the

instruction, taken as a whole, cannot be misunderstood as mandating

an inference of knowledge." United States v. Azubike, 564 F.3d

59, 66 (1st Cir. 2009); see Singh, 222 F.3d at 11. In mounting

his claim of instructional error, the appellant dwells on the

second of these elements, insisting that the evidence of purposeful

avoidance was insufficient to ground the instruction. We do not

agree.

To begin, the government is not required to prove willful

blindness by direct evidence. See Singh, 222 F.3d at 11. Instead,

it may satisfy its burden of production by adducing evidence that

red flags existed that the defendant consciously avoided

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investigating.2 See United States v. Ford, 821 F.3d 63, 74 (1st

Cir. 2016); Singh, 222 F.3d at 11. We have held that such

circumstantial evidence is "sufficient to permit a factfinder to

infer conscious avoidance of guilty knowledge" and, thus, to

justify a willful blindness instruction. Singh, 222 F.3d at 11.

In this case, warning signs abounded. For instance, the

appellant was a party to a call during which (as Victor testified)

Victor and Duffaud discussed the rental vehicle's air filter

housing system as a potential place to hide drugs. During the

same call, Victor told the appellant, "[s]ince you're a mechanic

call me when dude is putting the thing," and the appellant replied,

"Aight."3

So, too, in a subsequent call, the appellant told Victor,

"Dude is down the street, coming. Get it . . . get on the highway;

. . . ninety five." Victor responded: "Aight . . . If you can,

look for a good place in the car to hide it well for me. Look

under, if you can search under . . . If you can, go under physical

yourself," to which the appellant replied, "[y]eah, imma put

. . ." From these and other discussions explicated by Victor, the

jury reasonably could have inferred that the appellant either knew

2 In determining whether the government has satisfied its
burden of production, we take the facts in the light most favorable
to it. See Singh, 222 F.3d at 11.

3 Taken in context, the word "Aight" appears to be a
contraction of "all right," and the parties' briefs assume as much.

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of an effort to hide drugs in the rental vehicle and was

cooperating in that endeavor or he purposefully avoided looking

into the meaning of what the statements portended. The latter

inference was sufficient to ground a willful blindness

instruction. See Singh, 222 F.3d at 11; United States v. Cunan,

152 F.3d 29, 39 (1st Cir. 1998). Indeed, we previously have upheld

the use of a willful blindness instruction in a drug-distribution

case where a defendant responds affirmatively to jargon on an

intercepted call and makes no inquiry into its meaning. See

Azubike, 564 F.3d at 68. Such a ruling does no more than reflect

the reality of events: "drug organizations do not usually take

unnecessary risks by trusting critical transactions to outsiders."

Id. at 65 (internal quotation marks omitted).

In an attempt to derail this reasoning, the appellant

invokes our decision in United States v. Pérez-Meléndez, 599 F.3d

31 (1st Cir. 2010). There, we ruled that the evidence undergirding

the jury verdict was too thin. See id. at 46-47. This ruling

stemmed from our conclusion that the government had established no

more than that the defendants "knew or were willfully blind to the

fact that something illegal was afoot," not that a controlled

substance was involved. Id. at 45.

The case before us is readily distinguishable from

Pérez-Meléndez. In that case, the record contained "no evidence"

that the defendants had "resisted" learning the true nature of the

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contraband that they were transporting. Id. at 46. To the

contrary, they had been hired by a legitimate shipping company for

an ostensibly legal purpose — the transportation of reams of paper

— and the government's case of scienter relied almost entirely on

the fact that the defendants had given inconsistent statements to

the police. No red flags existed that might have alerted the

defendants to the fact that they were transporting narcotics (as

opposed to other types of contraband).

By contrast, the present record contains ample evidence,

including Victor's testimony regarding the contents of the

intercepted calls, from which a jury reasonably could find — as

this jury did — that the appellant knew that a drug deal was in

the offing. Moreover, the jury reasonably could have found that

the appellant either knowingly participated in the transportation

of the drugs or deliberately closed his eyes to the obvious fact

that he was transporting drugs.4

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment is

Affirmed.

4
The fact that the drugs were concealed in the trunk liner
of the rental vehicle driven by the appellant does not alter this
conclusion. After all, the jury, crediting the appellant's
statements during the intercepted calls and Victor's testimony,
reasonably could have inferred that the appellant either knew that
the drugs had been hidden there or purposefully avoided such
knowledge.

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