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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