United States v. Tiem Trinh

United States Court of Appeals
For the First Circuit

No. 10-1556

UNITED STATES OF AMERICA,

Appellee,

v.

TIEM TRINH,

Defendant, Appellant.

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

[Hon. William G. Young, U.S. District Judge]

Before

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

Robert A. George, for appellant.
Kirby A. Heller, Attorney, Appellate Section, Criminal
Division, with whom Carmen M. Ortiz, United States Attorney,
Richard L. Hoffman, Assistant United States Attorney, Timothy E.
Moran, Assistant United States Attorney, Lanny A. Breuer, Assistant
Attorney General, and Greg D. Andres, Acting Deputy Assistant
Attorney General, were on brief, for appellee.

December 20, 2011
 TORRUELLA, Circuit Judge. Defendant-Appellant Tiem Trinh

("Trinh") was convicted after a jury trial for the following

charges: conspiring to distribute and possess with intent to

distribute 1,000 kilograms or more of marijuana; money laundering;

engaging in unlawful monetary transactions; and perjury. He now

appeals his convictions on three grounds. First, he claims the

district court improperly denied his motion to suppress evidence

seized pursuant to a search warrant that he alleges was neither

supported by probable cause nor sufficiently particularized, was

based on stale information, and led to the allegedly "bad faith"

destruction of a marijuana leaf. Second, Trinh argues the district

court improperly denied his motion to sever his trial because his

defense was irreconcilably inconsistent with those of his co-

defendants. Lastly, Trinh contends the district court erred in

removing a juror and in denying his motion for a mistrial. Finding

no error in the district court's determinations, we affirm.

I. Background

A. Joint Operations: A Family Affair

Trinh's two sons, Quoc Boa Trinh ("Quoc") and Tai Trinh

("Tai"), became involved in and managed a large-scale marijuana

operation from 2001 until 2007. Quoc and Tai obtained marijuana

from various suppliers located in and around Massachusetts. On

purchasing the marijuana, the sons sold it in wholesale quantities

for further distribution.

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 Trinh and his wife, Anna Truong Trinh ("Anna"),

occasionally assisted Quoc and Tai in operating their drug

business. For instance, Trinh sometimes directly participated in

the purchase and sale of marijuana, on one occasion buying

approximately five pounds of marijuana from an individual and

selling it in his convenience store to Daniel DaCosta ("DaCosta")

-- a close friend of Quoc and a key cooperating witness for the

government at trial -- for $2,000 per pound. On another occasion,

Trinh met with a supplier, Chu Mop, for whom Quoc was considering

selling marijuana, to discuss the potential business arrangement.

Trinh also helped Quoc and Tai launder their drug sale

proceeds.1 Trinh "washed" the proceeds in a series of complex

money transfers -- arranging for the purchase of real estate in

both Florida and New York and for the renovation of the family

convenience store -- using accounts that were held in different

individuals' names.2

Perhaps going above and beyond the call of parental duty,

Trinh and Anna allowed their sons to store marijuana, drug

proceeds, and a money-counting machine in their residence. They

1
One of Trinh's daughters, Stephanie Trinh ("Stephanie"), along
with her boyfriend, Le Chau, also helped in the laundering of the
operation's drug proceeds.
2
Evidence at trial established that Trinh performed many of the
transactions in the name of one of his daughters, Hoa Trinh, who
lived in Alaska and was not involved in any of the subsequent
property purchases or use.

-3-
also allowed them to run their business out of the family

convenience store. Additionally, to help minimize their sons'

reliance on outside suppliers, Trinh and Anna began growing

marijuana in their family home in Dorchester, Massachusetts. They

also began growing it in a home in Buffalo, New York, purchased for

that specific purpose.

To facilitate the Buffalo home growing operations, Trinh

and Quoc decided to transfer supplies from the Dorchester home to

the house in Buffalo. Supplies included soil that Quoc and his

close friend, DaCosta, mixed in Trinh's Dorchester backyard; high-

intensity lights, containers, and vitamins that Anna had purchased

in Vietnam; and marijuana seeds, obtained from both Quoc and from

a visit to Canada. Trinh and Anna began living in the Buffalo

house, first renovating it for purposes of plant cultivation, and

then growing and raising the plants.

Trinh and Anna's cultivation attempts failed to take

root. Although Trinh researched marijuana growing methods --

watching an instructional DVD and consulting two of Quoc's

experienced associates -- their attempts at growing marketable

marijuana were not successful. In or around early 2007, the Trinhs

destroyed the fruits of their efforts, removing any plants that

were growing at the time and dumping them on the highway between

Buffalo and Dorchester.

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B. The Investigation: Smoking Out the Details

Before potting their Buffalo efforts, Trinh and his sons'

marijuana operation began to grow increased attention among several

law enforcement agencies in or around September 2006. The Drug

Enforcement Administration ("DEA") began conducting surveillance on

Trinh and his family while also enlisting the assistance of a

confidential source ("CS") who provided detailed reports on the

extent and progress of the Trinh operation. The CS's reports and

accompanying surveillance revealed the following information.

The CS recounted to investigating officials that Quoc

informed him he "was tired of paying high prices for marijuana" and

wanted to obtain a warehouse in Buffalo in which to start his own

marijuana "grow operation." On September 10, 2006, Quoc informed

the CS that he and his father, Trinh, were loading up a truck to

transport planting materials, lights, and other growing equipment

to the home Trinh purchased in Buffalo. The next morning, at

approximately 10:00 a.m., surveillance observed Quoc loading such

equipment into a white Dodge van. At approximately noon,

surveillance saw Quoc and two others -- later identified as Trinh

and Quoc's brother Antwon -- leaving from Boston, Massachusetts in

the van. Surveillance in Buffalo picked up the van at

approximately 7:00 p.m. that evening. Agents followed it to the

Buffalo home's location at 262 Bryant Street and observed as Quoc,

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Trinh, and Antwon backed the van up to the garage doors and

unloaded the supplies.

On October 17, 2006, the CS provided information

indicating that Quoc, Trinh, and Antwon were transporting

approximately twelve marijuana plants from Boston to Buffalo in a

different white van. Surveillance positioned itself in locations

associated with the Trinhs' movements on that evening.

Surveillance also intercepted a telephone conversation, in which

Quoc stated he was about thirty to forty miles outside of Buffalo,

that corroborated the observed movements of the Trinhs. Agents saw

the van arrive at the Buffalo home later that evening and observed

three males, including Trinh, unload items from the van and into

the garage. After unloading the van, the three males entered the

house and closed the garage door.

Surveillance saw the CS at the Buffalo house between

December 7 and December 9, 2006. The CS provided information

regarding his personal observations of the home. Specifically, the

CS stated that Trinh and Quoc were growing marijuana plants in both

the basement and second floor bedrooms of the house. The CS

estimated that there were approximately 200-300 plants growing in

the basement. The CS provided information as to the appearance of

each room, including, among other details, that the windows and

walls in the cultivating rooms were covered in foil; there was a

"pit" on the first floor into which Trinh and Quoc would bury their

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trash (to prevent it from being mixed into the weekly community

trash); a stairway provided access to both the basement and second

floor rooms; the basement had aluminum umbrella lights from which

a large light bulb hung down, as well as a humidifying system and

ventilation system; the second floor rooms had high-powered,

umbrella-esque lights with sound-proofing material on the floors

and electrical receptacles and wiring in the closets; and one room,

containing high-powered lights, was used solely for drying the

marijuana buds. The CS also noted the overall layout of the house,

including the rooms' specific location in the home and their

functional purpose (e.g., dining room, living room, or sleeping

area). Lastly, the CS noted that Trinh was staying in the house to

oversee the growing operation and that he watered the plants on a

daily basis.

On December 18 and 30, 2006, surveilling agents

intercepted phone conversations between Trinh and Quoc, providing

additional corroboration for the marijuana growing operation. On

December 18, Quoc informed Trinh that he had more "fish eggs" for

him to incubate; on December 30, Trinh advised Quoc that only two

hundred dollars were needed for the "'roses' at his house to be

done." Agents believed Trinh and Quoc were communicating in code

to refer to, first, the process of growing marijuana seedlings into

mature plants, and second, those plants that were almost ready for

harvesting and sale.

-7-
 After several months of investigating the Trinhs, DEA

Special Agent Christian Ulmer ("Agent Ulmer"), who had extensive

training and experience in the field of marijuana cultivation,

applied for a search warrant to search Trinh's Buffalo house for

evidence of the marijuana and money laundering operations. Agent

Ulmer prepared a seventeen-page affidavit providing information as

to the investigation conducted to date. Agent Ulmer noted that

some of the information provided in the affidavit came from the CS

who "has on numerous occasions provided credible and reliable

information which led to the successful seizure of MDMA, marijuana

and weapons in the past." The warrant described the property to be

seized as that on the "Schedule of Items To Be Seized," which

included, among other items, "[p]araphernalia for the packaging,

weighing, processing and distributing of marijuana, including

scales, plastic bags and utensils."

C. The Game Is Up: The Trinhs Take the Hit

On January 31, 2007, a magistrate judge authorized the

search warrant; agents executed the warrant on February 2, 2007.3

On entering the Buffalo premises, agents saw no evidence of ongoing

marijuana cultivation. Instead, they saw what remained of a

dismantled operation. Specifically, agents observed large

quantities of planting pots, buckets, and foam cups of different

3
No one was home on the day the agents executed the warrant.
Agents left a copy of the warrant at the premises.

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sizes, some of which still contained potting soil; venting

equipment; boxes of industrial, high-intensity lights; unopened

bags of fertilizer; seed starter blocks; and a container filled

with "some very goopy, smelly sludge." Agents seized a small

sample of the cultivation-based items.

Agents also seized a single leaf, which was believed to

have come from a marijuana plant. However, the leaf was

subsequently destroyed because, as provided in Agent Eugene

DiFiore's February 6, 2007 Report of Investigation, "[t]he

approximate one gram of suspected marijuana is well below

prosecutorial minimums for both state and federal charges. Per the

DEA Agent's Manual, paragraph 6662.52, the suspected marijuana, had

no evidentiary value and was destroyed."

Based on this evidence, officers arrested the Trinhs for

their alleged involvement in a marijuana growing operation. The

Trinhs were charged with conspiring to possess marijuana and

possessing marijuana with the intent to distribute it, among other

charges.

During the pre-trial stage, Trinh filed a motion to

suppress evidence, raising three arguments: (1) the government

violated his constitutional rights by destroying potentially

exculpatory evidence; (2) the affidavit attached to the search

warrant contained stale information and did not provide probable

cause for the search; and (3) the warrant was not sufficiently

-9-
particularized; stated differently, agents seized "plant-growing

chemicals, soil, and planters" that "were not listed in the

warrant, making their seizure unlawful."

The district court denied Trinh's motion in a bench

ruling. First, the court noted that the defendants "failed to

raise an evidentiary issue as to bad faith of the agents," and

thus, the court was not going to conduct a hearing on the search

warrant affidavit's integrity. Second, the court held that the

information in the affidavit was not stale and was sufficient for

purposes of establishing probable cause. Third, the court stated

that "[t]he breadth of the execution of the warrant is a closer

question." Specifically, the court noted that pursuant to the

plain view exception,4 officers may seize evidence and contraband

that are "directly inculpatory of a defendant with respect to a

particular crime, not innocent materials which could be used in the

commission of a crime." Further noting the applicability of the

"good faith" doctrine, United States v. Leon, 468 U.S. 897 (1984)

(providing for the admissibility of evidence seized during the

execution of a search warrant on which officers relied in good

faith), and assessing the warrant application under the totality of

4
The Supreme Court first set forth the plain view exception to
the warrant requirement in Arizona v. Hicks, 480 U.S. 321 (1987),
permitting the seizure of items -- for which no warrant was
specifically issued -- where the officer is lawfully present in the
area from which the evidence may be viewed; the officer has lawful
access to the items; and the items' incriminating character is
"immediately apparent."

-10-
the circumstances, see Illinois v. Gates, 462 U.S. 213 (1983), the

court determined that the warrant was not executed as "a general

warrant," and "[t]here is no reason to believe the officers were

acting in anything other than good faith and in good faith seized

those matters, those instrumentalities, those things that they

seized in this case."

Leaving no leaf unturned, the court lastly held that the

agents' destruction of the potential marijuana fragment was not a

violation of the defendants' due process rights. The court

advised, however, that any testimony concerning the leaf would be

limited to "officers who in fact were on the scene, not some after

the fact pseudo expert, and that officer may say nothing more than,

having given his background and having authenticated [any submitted

leaf] photos, that the leaf fragment appeared to be marijuana, or

words to that effect."

At trial, the government introduced some of the items

seized during the Buffalo search, including planting pots, potting

soil, styrofoam cups, a thermostat, a timer, seed starter,

fertilizer, plastic baggies, electrical adapters, ballasts,

chemicals, light bulbs, and lamp hoods. Additionally, the

government introduced photographs that were taken during the

seizure showing larger quantities of the previously introduced

items. The photographs also showed various equipment generally

associated with the indoor cultivation of marijuana. The

-11-
government did not introduce evidence concerning the seized and

subsequently destroyed marijuana leaf.

The jury convicted Trinh of conspiring to distribute and

possess with intent to distribute 1,000 kilograms or more of

marijuana, in violation of 21 U.S.C. § 846; conspiring to money

launder, in violation of 18 U.S.C. § 1956(h); four counts of money

laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i); five

counts of engaging in unlawful monetary transactions, in violation

of 18 U.S.C. § 1957; and perjury, in violation of 18 U.S.C. § 1621

(2). The jury acquitted Trinh of one count of money laundering.

Trinh was subsequently sentenced to 144 months of imprisonment, to

be followed by five years of supervised release.

Hoping the grass will be greener on appeal, Trinh now

challenges his convictions on three grounds: (1) the district court

improperly denied his motion to suppress evidence seized during the

execution of an allegedly invalid warrant; (2) the district court

improperly denied his motion to sever his trial from that of his

co-defendants; and (3) the district court erred in removing a

juror, thereby prejudicing his trial, and in denying his subsequent

motion for a mistrial. We address each claim in turn.

II. Discussion

A. The Motion to Suppress

Trinh raises four arguments as to why the district court

should have granted his motion to suppress evidence seized during

-12-
the search of the Buffalo premises. Trinh alleges, first, that the

affidavit failed to show probable cause for the search; second, the

information in the affidavit was stale; third, the agents seized

items not particularly specified in the warrant; and fourth, agents

improperly destroyed a marijuana leaf prior to the defense's

examination of it. We address Trinh's arguments seriatim, mindful

that our review of a motion to suppress is twofold. That is, on

the one hand, "[w]e review de novo the legal conclusions of the

district court, 'including the determination that a given set of

facts constituted probable cause' . . . [and] the applicability of

the Leon good faith exception." United States v. Woodbury, 511

F.3d 93, 96 (1st Cir. 2007) (quoting United States v. Charles, 213

F.3d 10, 18 (1st Cir. 2000)). On the other hand, "[w]e review the

district court's fact findings for clear error," United States v.

Garza, 435 F.3d 73, 75 (1st Cir. 2006), including the district

court's determinations concerning bad faith. See United States v.

Gallant, 25 F.3d 36, 39 (1st Cir. 1994). We will affirm a district

court's denial of a motion to suppress where "any reasonable view

of the evidence supports the decision." Woodbury, 511 F.3d at 97

(quoting Charles, 213 F.3d at 18) (internal quotation mark

omitted).

1. Probable Cause

Trinh argues that the search warrant affidavit was not

supported by probable cause because the affiant largely relied on

-13-
the CS, for whom no history of past reliability was established;

this is in contrast to other cases in which this Court has deemed

an informant to be reliable because he has provided "numerous" tips

or helpful information in the past. See, e.g., United States v.

Barnes, 492 F.3d 33, 37 (1st Cir. 2007) (finding "ample additional

evidence" to support the CS's reliability where the CS had supplied

information leading to many past arrests). Further, Trinh submits

that any observations resulting from surveillance of the Trinhs

corroborated nothing more than innocent acts on the defendants'

parts. In particular, Trinh argues that no corroborating evidence

confirmed the CS's claims that marijuana cultivation was occurring

in the Buffalo residence. We reject Trinh's arguments.

First, it is well-established that "[i]n determining the

sufficiency of an affidavit, we consider whether the 'totality of

the circumstances' stated in the affidavit demonstrates probable

cause to search the premises." United States v. Barnard, 299 F.3d

90, 93 (1st Cir. 2002) (quoting United States v. Khounsavanh, 113

F.3d 279, 283 (1st Cir. 1997)). We review the affidavit to make "a

practical, common-sense" determination as to whether, "given all

the circumstances set forth in the affidavit . . . there is a fair

probability that contraband or evidence of a crime will be found in

a particular place." Gates, 462 U.S. at 238. As the reviewing

court on appeal, we accord "considerable deference to reasonable

inferences the [issuing judge] may have drawn from the attested

-14-
facts." United States v. Zayas-Díaz, 95 F.3d 105, 111 (1st Cir.

1996) (quoting United States v. Bucuvalas, 970 F.2d 937, 940 (1st

Cir. 1992) (internal quotation marks omitted); see also United

States v. Taylor, 985 F.2d 3, 5 (1st Cir. 1993) ("[T]he duty of a

reviewing court is simply to ensure that the magistrate had a

'substantial basis for . . . conclud[ing]' that probable cause

existed." (alteration in original) (quoting United States v.

Caggiano, 899 F.2d 99, 102 (1st Cir. 1990)). Further, in a

"doubtful or marginal case," we defer to the issuing judge's

probable cause determination. Barnard, 299 F.3d at 93.

Because the affidavit at issue mainly relies on the

informing CS's reports to investigating authorities, we apply a

"nonexhaustive list of factors" to examine the affidavit's probable

cause showing. Id. These factors include, among others, (1)

whether the affidavit establishes the probable "'veracity' and

'basis of knowledge' of persons supplying hearsay information,"

Gates, 462 U.S. at 238; (2) whether an informant's statements

reflect firsthand knowledge, Zayas-Díaz, 95 F.3d at 111; see also

Gates, 462 U.S. at 234 (providing that an informant's "explicit and

detailed description of alleged wrongdoing, along with a statement

that the event was observed firsthand, entitles his tip to greater

weight than might otherwise be the case"); Taylor, 985 F.2d at 6

(noting that an affidavit may support an informant's veracity

"through the very specificity and detail with which it relates the

-15-
informant's first-hand description of the place to be searched or

the items to be seized"); (3) whether "some or all [of] the

informant's factual statements were corroborated wherever

reasonable and practicable (e.g., through police surveillance),"

Zayas-Díaz, 95 F.3d at 111; and (4) whether a law enforcement

affiant assessed, from his professional standpoint, experience, and

expertise, the probable significance of the informant's provided

information, Khounsavanh, 113 F.3d at 284. Because "[n]one of

these factors is indispensable," a stronger showing of supporting

evidence as to one or more factors may effectively counterbalance

a lesser showing as to others. Zayas-Díaz, 95 F.3d at 111.

The affidavit here satisfies these factors. First,

contrary to Trinh's claim, the affidavit expressly stated Agent

Ulmer's assertion that he deemed the CS to be a trustworthy source

because the informant "ha[d] on numerous occasions provided

credible and reliable information which led to the successful

seizure of MDMA, marijuana and weapons." Because Agent Ulmer

supported his statement of the CS's reliability with reference to

the latter's history of providing information to authorities, we

have at least "some assurance of reliability. Unlike an anonymous

tipster, the [CS] [is] known to the police and [can] be held

responsible if his assertions prove[] inaccurate or false."

Barnard, 299 F.3d at 93; see also Zayas-Díaz, 95 F.3d at 112

(agent's assertion that a CS had "demonstrated his reliability in

-16-
the past" supported the informant's credibility and the veracity of

his information); Taylor, 985 F.2d at 5-6.

Second, much of the CS's provided information indicated

that he had firsthand knowledge as to the marijuana operation. See

United States v. Greenburg, 410 F.3d 63, 67 (1st Cir. 2005) ("A

specific, first-hand account of possible criminal activity is a

hallmark of a credible tip."). Specifically, the CS provided

extensive, detailed information as to what was located in each room

of the Buffalo house, including the type and number of light bulbs,

humidifier and ventilation systems, and marijuana plants; the

location and purpose of the first floor trash "pit;" the types of

materials lining the walls and floors of the cultivation rooms; the

difference between the items in the growing rooms and the "weed

drying" rooms; the location and purpose of electrical receptacles;

and the overall geographic layout of the house.

The CS also provided specific information concerning

Trinh's activities in the house, including that he was staying

there to directly oversee the marijuana growth; that he watered the

marijuana plants every day; that he buried all trash related to the

marijuana operation in a separate "pit" to prevent its being

exposed to the public's view in the weekly trash pile; and that he

performed all of the electrical work in the house. The extent and

level of detail as to the CS's information concerning the house and

growing operation reflects knowledge of hidden, illegal activity,

-17-
and not generally obtainable, irrelevant, or non-incriminating

facts. See Barnard, 299 F.3d at 94; Khounsavanh, 113 F.3d at 284.

This weighs in favor of the informant's reliability.

Further, the affidavit provided a basis for the CS's

firsthand knowledge because it stated that surveillance observed

the CS arriving at and entering the Buffalo premises on December 7,

2006; entering and exiting the house with Trinh and Quoc multiple

times on December 8; and leaving the house via the right garage

doorway on December 9. Additionally, to be addressed subsequently,

surveillance corroborated much of the CS's provided information,

further enhancing the reliability of the CS's basis of knowledge as

to the marijuana operation. See Gates, 462 U.S. at 244-45 ("It is

enough, for purposes of assessing probable cause, that

'corroboration through other sources of information reduced the

chances of a reckless or prevaricating tale,' thus providing 'a

substantial basis for crediting the hearsay.'" (quoting Jones v.

United States, 362 U.S. 257, 269 (1960))).

Third, both surveillance units' monitoring of the Trinhs'

movements as well as intercepted phone conversations corroborated

much of the CS's information. Specifically, after the CS informed

agents that the Trinhs were loading a truck with growing equipment

to transport to Buffalo, surveillance agents saw Quoc and two other

men, later identified to be Trinh and Antwon, putting equipment

into a van and departing from the Boston area. Agents stationed in

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the Buffalo area picked up the van when it reached that location

and followed it to the Buffalo premises. An intercepted phone

call, in which Quoc stated he was approximately thirty miles

outside of Buffalo, and surveillance's observations of a white

van's arrival at the Buffalo house, additionally corroborated the

CS's information that Trinh and his sons were transporting

marijuana plants from Boston to Buffalo in a van.

Further corroboration included surveillance's own

observations of the Buffalo premises, which matched the CS's

firsthand description of the house; intercepted phone conversations

between Trinh and his son, in which the men spoke in code about

growing marijuana seedlings and harvesting those plants ready for

sale, which matched the CS's details of the cultivation activities

occurring within the house; and surveillance's observations of the

CS entering the premises on December 7, entering and exiting the

premises on December 8, and leaving it on December 9, which

corroborated the CS's statements that he personally had been to the

house during that particular time period.

Although some of this corroborated information might not,

at first blush, appear to be indicative of illegal activity, case

law makes clear that "corroboration of even innocent activity

reported in the tip may support a finding of probable cause,"

United States v. Perez, 67 F.3d 1371, 1383 (9th Cir. 1995), and

that "[c]orroboration of apparently innocent activity can establish

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the reliability of the informant because the activity might come to

appear suspicious in light of the initial tip." Greenburg, 410

F.3d at 69. Here, the CS provided extensive and detailed

descriptions of the Buffalo premises. See Taylor, 985 F.2d at 6

(stating that informant's "detailed description of the premises to

be searched, including the exteriors and interiors of the [home],

noting in particular the 400 to 500 marijuana seedlings being

raised . . . at appellant's residence," weighed in favor of CS's

credibility and the issuing judge's probable cause finding).

Furthermore, authorities independently corroborated many

of the CS's details through intercepted phone conversations and

general monitoring of the Trinhs. See United States v. Soule, 908

F.2d 1032, 1039 (1st Cir. 1990) (noting that police officers'

contemporaneous corroboration of the "material elements" of the

CS's information "lent substantial intrinsic verification to the

informant's veracity and basis of knowledge"). Thus, the fact that

surveillance observed seemingly innocent van travels between Boston

and Buffalo takes on a greater significance and supports the CS's

credibility when viewed in light of other corroborative evidence

indicating incriminating activity. See Greenburg, 410 F.3d at 69

(providing that a surveillance agent's "observation of seemingly

innocent truck movement, which matched the informant's prediction

about such activity, helped establish a substantial reason to

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believe that the informant's description of the entire scheme was

accurate").

Fourth and finally, Agent Ulmer set forth his particular

knowledge and experience in the field of marijuana cultivation

operations in the affidavit. He attested that he had been a

Special Agent for the DEA for approximately eight years; that he

had participated in "numerous" cases involving narcotics

distribution; drafted and executed many search and arrest warrants;

participated in several Title III investigations; and that he was

familiar with, among other processes, the packaging, distribution,

and selling of narcotics in drug trafficking organizations. Agent

Ulmer also discussed his knowledge, acquired from years of

involvement in drug investigations, of indoor marijuana cultivation

and propagation operations, providing details that paralleled many

of the CS's reports of the Trinhs' actions. It is established that

the issuing judge making a probable cause determination "may credit

the experience and pertinent expertise of a law enforcement affiant

in evaluating the authenticity of the informant's description of

the target's modus operandi." Taylor, 985 F.2d at 6. Thus, Agent

Ulmer's extensive experience in the field of marijuana cultivation

and as a law enforcement officer "plainly buttressed the informant-

based indicia of probable cause," id., and "boosted the reliability

of the [CS's] information," Barnard, 299 F.3d at 95.

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 These factors combined to provide the issuing judge with

a "fair probability that contraband or evidence of a crime [would]

be found" in the Buffalo residence. Khounsavanh, 113 F.3d at 286

(quoting Gates, 462 U.S. at 238 (internal quotation marks

omitted)). We find no error in the district court's determination

that the totality of the circumstances set forth in the affidavit

provided a substantial basis for the issuing judge to conclude that

probable cause existed.

2. Staleness

We similarly find no error in the district court's

determination that the information contained in the affidavit was

not stale. Although we agree with Trinh's initial position that

"[t]he law sensibly draws no bright-line rule for staleness,"

Walczyk v. Rio, 496 F.3d 139, 162 (2d Cir. 2007), we must disagree

with the heart of his staleness claim, which -- counter to his

original proposition -- principally relies on the lapse of time

between the informant's detailed observations and the date of the

warrant's issuance. Trinh argues that too much time lapsed between

the activities detailed in the affidavit and the issuance of the

warrant, thereby reducing the likelihood that evidence supporting

a marijuana growing operation would be present in the Buffalo

premises at the time of the search and effectively precluding a

legitimate finding of probable cause.

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 Specifically, Trinh argues that the affidavit does not

provide any dates after December 9, 2006 when surveillance observed

anyone entering or leaving the Buffalo premises. That is, during

the near two-month lapse between the early December observations

and the January 31, 2007 issuance of the warrant, there is no

mention of agents having observed any activity indicative of a

marijuana growing operation on the premises. Because no suspicious

activity occurred during this two-month period, and further,

because nearly five months had passed since agents first observed

seemingly suspicious activity, Trinh contends that the information

in the affidavit was stale; that the warrant should not have

issued; and that the seized evidence should have been suppressed.

In essence, Trinh's argument is one of timeliness.

Time, however, is not on Trinh's side.

This Court has repeatedly refused to assess an

affidavit's staleness by counting the number of days between the

events described in the affidavit and a warrant's issuance, as a

merchant would beads on an abacus. See United States v. Morales-

Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) ("When evaluating a

claim of staleness, we do not measure the timeliness of information

simply by counting the number of days that have elapsed."); United

States v. Schaefer, 87 F.3d 562, 568 (1st Cir. 1996) ("[C]ourts

confronting suppression motions do not measure the timeliness of

collected information mechanistically, merely counting the number

-23-
of days elapsed."). Instead, we have considered various factors,

including "the nature of the information, the nature and

characteristics of the suspected criminal activity, and the likely

endurance of the information" in assessing the information's

ripeness. Morales-Aldahondo, 524 F.3d at 119.

Here, the underlying facts pointed to an ongoing

marijuana cultivation scheme. The CS told investigating

authorities that the Trinhs were involved in a marijuana growing

operation, in which the CS had been providing assistance; that the

Trinhs were transporting marijuana growing equipment from Boston to

Buffalo; and that they were cultivating the marijuana plants in a

Buffalo home, of which he provided a detailed description.

Surveillance confirmed the CS's involvement with the Trinhs;

observed the Trinhs' equipment movement between Boston and Buffalo;

and corroborated the Trinhs' unloading of equipment and residence

in the Buffalo house that matched the CS's description. We have

repeatedly recognized that drug operations, when sheltered in the

darkness of relative obscurity, often germinate over a protracted

period of time; thus, information that might otherwise appear stale

may remain fresh and timely during the course of the operation's

progression. See Schaefer, 87 F.3d at 568 (stating "it is common

ground that drug conspiracies tend to be ongoing operations,

rendering timely information that might, in other contexts, be

regarded as stale"); see also United States v. Nocella, 849 F.2d

-24-
33, 40 (1st Cir. 1988) (noting that "[b]y its very nature, drug

trafficking, if unchecked, is apt to persist over relatively long

periods of time").

Furthermore, the warrant at issue targeted the seizure of

materials associated with a marijuana cultivation scheme. Many of

these items consisted of hardware and equipment often associated

with the growing of marijuana (e.g., special lights and wiring,

humidifying and venting systems, and rooms, lined with foil and

other padding, to better cultivate the plants), which was likely to

be of use to the operation for a considerable period of time. That

is, "[t]he warrant did not target items of transient existence,"

and thus, information that might have tipped the scales towards

staleness in other contexts involving more ephemeral or expiring

items remained both relevant and timely here. See Schaefer, 87

F.3d at 568; see also United States v. McKeever, 5 F.3d 863, 866

(5th Cir. 1993) (noting the long-term nature of marijuana

cultivation; providing that where an affidavit addresses activity

of a continuous or extended nature, less current information will

be acceptable if the evidence may be reasonably suspected "to be

kept for long periods of time in the place to be searched").

Additionally, we note that the requested search in this

instance was of Trinh's Buffalo home, which he had purchased and in

which he was living, and "not a rented or appropriated facility

that could easily be used and then abandoned." Schaefer, 87 F.3d

-25-
at 568. The fact that Trinh owned the property and was frequently

residing in it (according to both the CS and surveillance units'

observations) plays into our staleness assessment, as it indicates

the anticipated continual nature of the operation. See id.

Finally, Trinh's assertion that the last relevant date

during which surveillance observed activity at the Buffalo

residence was December 9, 2006 is incorrect. Agents intercepted

two phone conversations laced with marijuana-coded terminology on

December 18 and 30, in which Quoc and Trinh discussed the

development of marijuana seedlings and the harvesting of already-

matured plants. The later discussion occurred approximately one

month before the issuance of the warrant, corroborated earlier

acquired information, and bridged the gap between the older

information and present activities, linking the two together. See

id. at 568; see also Nocella, 849 F.2d at 39-40.

These factors thus support the district court's

conclusion that the affidavit's information was not stale.

3. Particularity

Trinh next argues that the district court improperly

denied his motion to dismiss the evidence seized from the Buffalo

home because the warrant did not authorize the seizure of "plant-

growing materials, such as fertilizer, soil, or planters."

Instead, Trinh contends the warrant only authorized the search and

seizure of "marijuana plants, currency, paperwork, and even

-26-
jewelry, but not plant-growing chemicals . . ., planters, and

soil." For the following reasons, we find no merit to Trinh's

argument.

We begin with the basic proposition that the Warrant

Clause of the Fourth Amendment prohibits the issuance of a warrant,

except one "particularly describing the place to be searched, and

the persons or things to be seized." U.S. Const. amend. IV. A

search "intruding upon [an individual's] privacy

interest . . . must satisfy the particularity requirement, which

limits the scope and intensity of the search." United States v.

Mousli, 511 F.3d 7, 12 (1st Cir. 2007) (alteration in original)

(quoting United States v. Bonner, 808 F.2d 864, 867 (1st Cir.

1986)) (internal quotation mark omitted). The significance of the

particularity requirement is "not only to circumscribe the

discretion of the executing officers but also to inform the person

subject to the search and seizure what the officers are entitled to

take." United States v. Roche, 614 F.2d 6, 8 (1st Cir. 1980)

(quoting In Re Application of Lafayette Acad., Inc., 610 F.2d 1, 5

(1st Cir. 1979)); see also United States v. Upham, 168 F.3d 532,

535 (1st Cir. 1999) ("The cases on 'particularity' are actually

concerned with at least two rather different problems: one is

whether the warrant supplies enough information to guide and

control the agent's judgment in selecting what to take, and the

other is whether the category as specified is too broad in the

-27-
sense that it includes items that should not be seized." (internal

citations omitted)). Where a warrant is accompanied by an

affidavit, the "affidavit may be referred to for purposes of

providing particularity," provided that "the warrant uses suitable

words of reference which incorporate the affidavit." United States

v. Klein, 565 F.2d 183, 186 n.3 (1st Cir. 1977).

We turn to the language of the warrant and its supporting

documents, which we read "not 'hypertechnically,' but in a

'commonsense' fashion." Barnes, 492 F.3d at 38 (quoting United

States v. Gendron, 18 F.3d 955, 966 (1st Cir. 1994)). Included

with the warrant was a "Schedule of Items to be Seized," which

listed, among other items, the following materials for seizure:

"[p]araphernalia for the packaging, weighing, processing and

distributing of marijuana, including scales, plastic bags and

utensils." Several dictionaries recognize the ordinary,

commonsense meaning of "paraphernalia" as "equipment [and]

apparatus . . . used in or necessary for a particular activity."

United States v. Stiver, 9 F.3d 298, 303 (3d Cir. 1993) (alteration

in original) (quoting The Random House Dictionary of the English

Language 1408 (2d ed. 1987)); see also Webster's Third New

International Dictionary 1638 (2002) (defining "paraphernalia" as

"articles of equipment" or "appurtenances"); The Oxford English

Dictionary 203 (2d ed. 1989) (defining "paraphernalia" as "articles

that compose an apparatus, outfit, or equipment; the mechanical

-28-
accessories of any function or complex scheme"). Further, Agent

Ulmer's affidavit, provided with the warrant, made clear that

agents trained or experienced in the field of marijuana propagation

know that "suspects routinely utilize the following items, and

methods" when cultivating marijuana, including planting materials

like "potting soil," "fertilizer," or "a root medium," among other

items.

Courts have recognized that "officers executing a search

warrant are 'required to interpret it,' and they are 'not obliged

to interpret it narrowly.'" Stiver, 9 F.3d at 302 (quoting Hessel

v. O'Hearn, 977 F.2d 299, 302 (7th Cir. 1992)). Here, the officers

who executed the warrant already had sufficient cause to believe

the Buffalo premises were being used towards the operation of a

marijuana cultivating scheme; the officers therefore had a

reasonable basis for determining that the plant-growing chemicals,

planters, fertilizer, and soil constituted "equipment" or

"apparatus" that was a necessary element to the marijuana growing

operation, and they properly seized the plant-growing materials.5

5
We note that even if it could plausibly be argued that the
warrant in this instance lacked particularity, the district court's
denial of Trinh's motion to suppress still would have been proper
because the seized items would have been admissible under either
(1) the plain view doctrine or (2) Leon's good-faith exception.

Pursuant to the plain view doctrine, agents may seize items in
plain view if "the seizing officer has a prior justification for
being in a position to see the item in plain view," United States
v. Owens, 167 F.3d 739, 746 (1st Cir. 1999), and he has probable
cause to believe the items are of an incriminatory nature. See

-29-
Thus, we affirm the district court's conclusion that suppression

was not warranted on particularity grounds.

4. Destruction of the Leaf

We proceed to Trinh's final argument in support of his

motion to suppress. Trinh contends that a leaf seized at the

Buffalo home -- which the government alleges was a marijuana leaf

-- was improperly destroyed before either the government or Trinh

had an opportunity to inspect, examine, or test it. Because "the

United States v. Hamie, 165 F.3d 80, 82-83 (1st Cir. 1999). Here,
the plant-growing materials were seized during the execution of a
search warrant that specifically targeted items relating to a
marijuana growing operation; further, the incriminatory nature of
the items was "immediately apparent" to the officers. See United
States v. O'Campo, 381 F. App'x 974, 975 (11th Cir. 2010) (seizure
of items proper because, "[a]lthough these items could be used for
legitimate purposes," they also could be associated with a
marijuana growing operation and thus "were incriminating on their
face because, before entering the house, executing officers had
probable cause to believe that the house contained a marijuana
growing operation").

Under the good-faith exception to the exclusionary rule,
improperly seized items may still be admissible where it is shown
that the officers, acting in objective good faith, "obtained a
search warrant from a judge or magistrate and acted within its
scope," Leon, 468 U.S. at 920. The facts here show that the
officers obtained a warrant that authorized them to seize various
items associated with a marijuana growing operation, including
"paraphernalia for the . . . processing . . . of marijuana." The
warrant was accompanied by an affidavit, which described in detail
the various components of a marijuana cultivation scheme, many of
which consisted of items that were strongly similar to those
actually seized during the search.

For these reasons, the district court did not err in concluding
that the officers acted in good faith when they seized items akin
to those expressly authorized by the warrant, and that the seized
items were of an "immediately apparent" incriminating nature,
further supporting their admissibility.

-30-
exculpatory value of the alleged marijuana was apparent before its

destruction," Trinh submits that the police acted in bad faith when

they intentionally destroyed untested evidence almost immediately

following its seizure. For these reasons, Trinh argues the

government "should not have been allowed to present testimony at

trial about finding evidence of marijuana," and that "[t]he denial

of [his] motion [to suppress] and the introduction of such evidence

was error." We reject Trinh's arguments.

The record clearly shows that no evidence concerning the

leaf fragment was in fact introduced at trial, making any argument

in favor of his motion to suppress (in contrast to Trinh's other

arguments) now moot.6 See United States v. Ricciardelli, 998 F.2d

8, 15 n.7 (1st Cir. 1993) (addressing issue of appellant's consent

as to seized items on review of lower court's denial of a motion to

6
Although Trinh's only action against the destruction of the leaf
was a motion to suppress, we note Trinh's argument that the
police's withholding of allegedly material exculpatory evidence
constituted a potential due process violation. A failure to
preserve potentially useful evidence does not constitute a due
process violation unless Trinh can show the police agents' bad
faith. Arizona v. Youngblood, 488 U.S. 51, 57 (1988) (noting that
when "deal[ing] with the failure of the State to preserve
evidentiary material of which no more can be said than that it
could have been subjected to tests, the results of which might have
exonerated the defendant," the Due Process Clause requires a
showing of bad faith on the part of the police). Here, Trinh has
neither presented facts contradicting the government's explanation
that the leaf fragment was destroyed in accordance with DEA routine
procedure, nor has Trinh countered the government's position that
it initially identified the leaf fragment to be marijuana before
its destruction, weighing against a conclusion that agents
intentionally destroyed potentially exculpatory evidence.

-31-
suppress and stating, "[t]he short, conclusive answer in regard to

such items is that the government did not seek to use them against

appellant or introduce them into evidence at the trial. Any

controversy [regarding] such items is, therefore, moot"); United

States v. Veillette, 778 F.2d 899, 904 n.4 (1st Cir. 1985) ("The

district court correctly limited its consideration to items which

the government intended to introduce at trial. The suppression

issue was moot as to items in which the government had no interest

as evidence.").

For these reasons, we conclude that the district court's

determination that the agents did not destroy the leaf fragment in

bad faith was not clear error.

B. The Motion to Sever

Trinh next argues that the district court erred in

denying his motion for severance because his defense was

irreconcilably inconsistent with those of his co-defendants. In

particular, Trinh contends that admitted statements from co-

conspirators were "terribly prejudicial" to his defense, "were

being recounted by witnesses in a totem pole fashion," and "came

from conversations with Quoc and others, not with Tiem himself,"

thus prejudicially impacting his involvement in the conspiracy.

We review a district court's denial of a motion for

severance under Fed. R. Crim. P. 14 "for any manifest abuse of

discretion which deprived appellant of a fair trial and resulted in

-32-
a miscarriage of justice." United States v. Celestin, 612 F.3d 14,

19 (1st Cir. 2010) (quoting United States v. Peña-Lora, 225 F.3d

17, 33 (1st Cir. 2000) (internal quotation marks omitted)). We

note that "[t]he hurdle is intentionally high," Peña-Lora, 225 F.3d

at 33 (quoting United States v. Flores-Rivera, 56 F.3d 319, 325

(1st Cir. 1995)) (internal quotation mark omitted), most notably in

conspiracy cases where severance "is especially disfavored," id.,

because joint trials "promote efficiency," Zafiro v. United States,

506 U.S. 534, 537 (1993), and help to avoid "inconsistent

verdicts," id. (quoting Richardson v. Marsh, 481 U.S. 200, 210

(1987)). Rather, severance will be warranted "only if there is a

serious risk that a joint trial would compromise a specific trial

right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence." Celestin, 612 F.3d at

19 (quoting Zafiro, 506 U.S. at 539).

The record shows that Trinh first moved to sever his

trial from his co-defendants on the second day of trial, asserting

that co-defendants' counsel's opening statements were antagonistic

to his defense because they wrongfully characterized him as the

"mastermind" of both the marijuana and money laundering schemes; in

contrast, Trinh's position was that Quoc and Tai were the actual

leaders of the conspiracy. Trinh then renewed his motion to sever

-33-
at various times during trial which, following careful

consideration, the trial judge denied.7

A review of the record reveals no manifest abuse of

discretion by the district court in its denial of Trinh's motion to

sever. Trinh's severance claim is that the court improperly denied

his motion because his defense was irreconcilable with those of his

co-defendants; Trinh bears the burden on appeal of "establish[ing]

that any incompatibility was very substantial." Peña-Lora, 225

F.3d at 34. Furthermore, "[t]o obtain severance on the grounds of

conflicting defenses, a defendant has to demonstrate that the

defenses are so irreconcilable as to involve fundamental

disagreement over core and basic facts." United States v. Paradis,

802 F.2d 553, 561 (1st Cir. 1986)(emphasis added); United States v.

Luciano-Pacheco, 794 F.2d 7, 9 (1st Cir. 1986) ("[T]he need for

severance turns on the degree of conflict, and the extent to which

the antagonism goes beyond mere fingerpointing into the realm of

fundamental disagreement over core and basic facts."). Trinh falls

far short of satisfying his substantial burden.

7
Specifically, Trinh renewed his motion twice during Le Chau's
direct testimony -- in which Le Chau stated his girlfriend (and
Trinh's daughter) Stephanie asked him to purchase blank checks for
her family's purchase of a home in Buffalo, that he gave the checks
to Trinh, and that he at times loaned Trinh money, who later paid
him back --; once following Antwon's outburst that a witness's
testimony was "a total lie"; and once upon the court's ruling that
Stephanie's counsel could cross-examine DaCosta as to favors Le
Chau did for Quoc.

-34-
 To begin with, the only specific evidence Trinh points to

in support of his irreconcilable defenses claim is his co-

defendants' counsel's opening statement, during which Trinh

contends he was portrayed as the mastermind of the marijuana and

money laundering schemes. Such argumentation by counsel rarely is

sufficient for establishing a "truly prejudicial antagonistic

defense." Peña-Lora, 225 F.3d at 34 n.14 (noting that "[e]ach case

[involving alleged irreconcilable defenses] must be assessed on its

own facts"); United States v. Rose, 104 F.3d 1408, 1416 (1st Cir.

1997) ("[T]he level of antagonism in defenses is measured by the

evidence actually introduced at trial; argument by counsel is not

evidence.").

Furthermore, much of co-defendants' admitted evidence and

testimony at trial did not conflict with Trinh's defense that he

was a law-abiding businessman who engaged in "legitimate" real

estate transactions. For instance, co-defendants' counsel

presented evidence -- including testimony from government witness

DaCosta describing Trinh's legitimate business activities and

testimony from an IRS summary witness affirming Trinh's valid

sources of income -- that, far from substantially conflicting with

Trinh's defense, served to further reinforce it by highlighting the

legitimate nature of certain financial transactions in which he was

involved.

-35-
 Additionally, an examination of Trinh's co-defendants'

defenses weighs against a finding of irreconcilability. For

instance, Anna's defense -- that she was unaware of any marijuana

growing operation, did not participate in any drug transactions,

and signed financial documents with no knowledge as to their

significance -- did not conflict with Trinh's position that he did

not play any role in his sons' drug deals or knowingly launder any

drug proceeds. Likewise, Antwon's defense did not reference his

father at all; instead, he asserted there was no credible evidence

of a drug operation and that the cooperating witnesses were lying.

In essence, Trinh's irreconcilability argument amounts to

nothing more than an attempt to shift the blame onto his co-

defendants. However, our precedent makes clear that "mere

fingerpointing among codefendants -- i.e., the familiar 'he did it,

not I' defense -- normally is not a sufficient ground for

severance." Peña-Lora, 225 F.3d at 33; see also Zafiro, 506 U.S.

at 538 (refusing to adopt a "bright-line rule, mandating severance

whenever codefendants have conflicting defenses"); United States v.

McLaughlin, 957 F.2d 12, 18 (1st Cir. 1992) ("The fact that two

defendants assert antagonistic defenses does not, per se, require

severance, even if defendants are hostile or attempt to cast blame

on each other.").

Not only does Trinh fail to establish a sufficient degree

of antagonistic conflict between the defenses, but he also does not

-36-
show any prejudice arising from the joint trial. United States v.

Boylan, 898 F.2d 230, 246 (1st Cir. 1990) ("When severance has been

refused, the burden is on appellants 'to make a strong showing of

prejudice' in order to gain a new trial." (quoting United States v.

Porter, 764 F.2d 1, 12 (1st Cir. 1985))). To establish prejudice,

Trinh must show "more than just a better chance of acquittal at a

separate trial. Garden variety prejudice, which always exists when

more than one defendant or offense are tried together, does not

warrant a new trial." United States v. Tejeda, 481 F.3d 44, 55

(1st Cir. 2007)(citation and internal quotation marks omitted).

First, the majority of the evidence presented was

admissible against both Trinh and his co-defendants, whether they

were tried jointly or independently; this weighs against a finding

of prejudice in the denial of a severance motion.8 See United

8
Indeed, the evidence to which Trinh points to establish
prejudice does not advance his severance argument. Specifically,
Trinh identifies statements by alleged co-conspirators to missing
co-defendants, which he asserts were described "in a totem pole
fashion;" and testimony from cooperating witnesses regarding their
conversations with Quoc about Trinh. Such evidence, consisting of
co-conspirator statements (admissible pursuant to Fed. R. Evid.
801) and witnesses' observations rationally based on personal
perceptions (admissible pursuant to Fed. R. Evid. 402), would have
been admissible against Trinh regardless of whether he was tried
jointly or independently, and does not cut in favor of a finding of
prejudice.

Trinh also submits that the court's dismissal of a juror near
the end of trial led to "closed-door haggling over who [of the co-
defendants] would go free at the cost of another." However, at the
time the district court denied Trinh's motion to sever, the juror
incident had not yet taken place; an event not yet in play can
hardly be factored into an assessment of whether the court abused

-37-
States v. DeCologero, 530 F.3d 36, 54 (1st Cir. 2008) (finding

severance not warranted on grounds of evidentiary spillover effects

because "even if the defendants had received separate trials, [the]

evidence [at issue] would have been independently admissible

against each"); United States v. Richardson, 515 F.3d 74, 82 (1st

Cir. 2008) (noting that when evidentiary "spillover serves as the

ground for a defendant's severance motion, this Court has

repeatedly refused to overrule a denial of severance if

substantially the same evidence would have been admitted in

separate trials"); United States v. DeLuca, 137 F.3d 24, 36 (1st

Cir. 1998) (stating that "any evidentiary spillover is vitiated

where the evidence in all events would have been admissible against

the movant").

Second, the record shows that the district court judge

repeatedly advised the jury of its obligation to consider the

evidence against each defendant individually and not to allow any

familial connections amongst the defendants to affect its

determination of whether the defendants were co-conspirators. See

Boylan, 898 F.2d at 246 (finding no abuse of the district court's

Rule 14 discretion where the judge issued "limiting instructions as

to the admissibility of evidence against particular defendants and

as to the need to determine guilt on an individual basis"); see

also United States v. Soto-Beníquez, 356 F.3d 1, 30 (1st Cir. 2004)

its discretion when evaluating Trinh's severance motion.

-38-
(upholding district court's denial of motion to sever where, among

other factors, the court instructed the jury of its obligation to

judge each defendant separately, considering only the evidence

admissible against each respective defendant); United States v.

Capelton, 350 F.3d 231, 239 (1st Cir. 2003) (same).

Further, an examination of the jury's verdict shows that

the jury heeded the court's instructions, effectively considering

the evidence and weighing it against each defendant separately.

Boylan, 898 F.2d at 246 (upholding the district court's denial of

defendants' Rule 14 motion because "[t]he discriminating

verdict . . . evidenced that the jurors were able to, and did,

follow the court's [limiting] instructions," weighing against a

finding of prejudice); see also DeCologero, 530 F.3d at 56

(evaluating risk of prejudice underlying appellant's severance

motion, and noting that the jury "tellingly" returned "highly

individualized verdicts," acquitting some defendants while

convicting others, which showed that "[t]hese were not the verdicts

of a jury confused about the identity and culpability of the

individual defendants"); United States v. Houle, 237 F.3d 71, 76

(1st Cir. 2001) (stating that, "[w]ith regard to the jury's ability

to segregate the evidence and understand the judge's instructions,

the verdict itself is often quite telling;" and noting the verdict

in that case "show[ed] that the jury was able to compartmentalize

evidence and apply it to each defendant," weighing against a

-39-
finding of prejudice warranting severance). For instance, the jury

acquitted Trinh on one of the money laundering counts; acquitted

Antwon in full; acquitted Anna on the substantive unlawful monetary

transaction count while convicting her on the two conspiracy

counts; and acquitted Stephanie on the substantive counts without

reaching a determination as to the money laundering conspiracy

count.

Moreover, any allegation that Trinh's joint trial led to

a prejudicial evidentiary spillover that caused the jury to view

him, rather than the other defendants, as a mastermind of the

underlying conspiracies is essentially negated by a review of the

jury verdict form. The form shows that the jury expressly found

that Trinh was neither "an organizer or leader of a money

laundering conspiracy that involved five or more participants or

was otherwise extensive," nor "a manager or supervisor . . . of

criminal activity involving five or more participants or was

otherwise extensive."

Additionally, the form shows that the jury made

differentiated determinations as to the money laundering amounts

and number of marijuana plants attributable to Trinh, reflecting

their findings as to Trinh's role within the alleged conspiracies.

Specifically, although the jury concluded that the marijuana

conspiracy consisted of approximately 70 plants and 1,000 kilograms

or more, it found that only six plants could be ascribable to

-40-
Trinh; while it concluded that the money laundering conspiracy

involved $1,500,000, it found that only $200,000 could be imputable

to Trinh. Because a review of the record reflects no prejudice

arising from the joint trial of Trinh and his co-defendants, we

accordingly hold that the district court did not abuse its

discretion in denying Trinh's motion to sever. See DeCologero, 530

F.3d at 54 (noting that "'[i]n the context of conspiracy, severance

will rarely, if ever, be required' due to evidentiary spillover."

(quoting DeLuca, 137 F.3d at 36)).

C. Removal of Juror and Denial of Motion for a Mistrial

Trinh's final argument is that the district court (1)

abused its discretion when it removed a juror (Juror A) based on

reports that he had been observed by fellow jurors meeting with

Trinh and Stephanie outside of the courtroom, and (2) erred when it

denied Trinh's subsequent motion for a mistrial based on the

juror's removal. Before addressing the merits of Trinh's argument,

we review the facts relevant to this particular issue.

1. Factual Background

Prior to the close of evidence, the jury foreperson

reported to the court that one of the jurors had been seen talking

with Trinh and Stephanie. On being notified, the trial judge

immediately held a sidebar conference and informed the lawyers that

he intended to take a representative from each side, interview the

foreperson in the representatives' presence, determine whether the

-41-
foreperson "is the source of the information or whether it's

another juror," and if another juror or jurors were the source, to

inquire of them what they in fact observed. If, upon such

investigation, the judge concluded that the juror at issue should

be removed, he would excuse him; he then would interview the

remaining jurors and determine whether they believed they could

fairly adjudicate the case.

The record shows that the judge abided by his proposed

procedure, consulted with counsel during voir dire, and gave

counsel the opportunity to propose different topics for questioning

during the voir dire examination. See United States v. Hunnewell,

891 F.2d 955, 961 (1st Cir. 1989). Two jurors stated they

witnessed Juror A speaking with Trinh while the latter was holding

an open manila folder, with one juror (the foreperson) estimating

the interaction lasted approximately three minutes, and with the

other (Juror B) estimating approximately ten to fifteen seconds.

A third juror said, in a separate incident, she had seen Stephanie

walk up to Juror A while he was walking and speak to him. The

juror stated, "[i]t wasn't just hello and walk on. They walked

about an eighth of a mile together and then they split off,"

appearing to "just [be] chitchatting."

-42-
 Voir dire revealed that the witnessing jurors had

conversed amongst themselves and with several others9 concerning

their observations of Juror A; one juror stated she had discussed

the matter on more than one occasion. The record is less clear on

the issue of the manila envelope. Whereas the foreperson and Juror

B stated they simply recalled seeing Trinh holding it while

speaking with Juror A, another juror said he recalled the

foreperson stating he had seen Juror A "pass[] an envelope to Mr.

Trinh and talking with him." The juror later clarified that "maybe

I'm misspeaking saying passing," but he did recall the foreperson

mentioning the presence of a manila envelope during the encounter.

Finally, the voir dire record shows that the trial judge

specifically asked each of the questioned jurors whether their

knowledge as to Juror A's interactions with Trinh and Stephanie

would or had affected their respective ability to be open-minded,

fair, and impartial; each juror assertively replied in the

negative. The trial judge also advised each questioned juror

against discussing their interview or its substance with the other

jurors.

Trinh moved for a mistrial upon the conclusion of the

court's voir dire. Of particular concern to Trinh was the fact

that one of the jurors "believe[d] he heard someone say that [Juror

9
It was not clear from the record if "others" included other
jurors or simply other individuals who were present at the time of
the discussions.

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A] was either being passed an envelope or was passing an envelope,"

as he feared this could lead to the improper inference that Trinh

was engaging in a bribe or other form of corruption. Trinh also

emphasized his concern that if the court dismissed Juror A, the

effective upshot would be a belief amongst the other jurors that

Juror A had been dismissed for wrongdoing and/or negative attention

towards Trinh just prior to jury deliberations.

After hearing from all parties, the court decided to

remove Juror A and took Trinh's motion for mistrial under

advisement. It proceeded to voir dire the remaining jurors, all of

whom were generally asked only whether they had "observed any

interaction, between any juror and anybody involved in the case,

the lawyers, the witnesses, the people accused, anything at all,"

without mentioning, revealing, or providing any details as to the

alleged underlying interactions; no juror witnessed or had any

knowledge as to any such interactions, and each asserted he could

be fair and impartial. The judge asked all of the jurors --

including those previously voir dired -- as to their reactions to

Juror A's removal;10 all confirmed that their impartiality remained

unaffected.

10
The court clerk reported to the judge that when Juror A entered
the jury room following his dismissal, "he blurted out, 'I've been
kicked off the jury.'" The judge also asked jurors as to their
reactions to Juror A's outburst on being removed. Some had not
noticed the outburst; others had indifferent reactions.

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 Returning to trial, the court instructed the jury as

follows:

This morning we went through a procedure and
we have one less juror. I want to say to you
in as strong as possible terms that has
nothing to do with the substance of this case.
It is not to bear upon your deliberations
about the substance of this case in any way.

It later denied Trinh's motion for a mistrial, stating that "the

thorough inquiry that the Court engaged in, its strong instructions

to the jury, and the evidence that the Court had before it, do not

in this instance warrant a mistrial." And again, in administering

its final instructions to the jury before its deliberations, the

court advised that "[t]he interviews yesterday morning, the

individual interviews, and the questions I asked you, none of that

has anything to do with this case," and reminded jurors of their

obligation to "judge this case fairly and impartially on this

evidence."

2. Analysis

We review a district court's removal of a juror for abuse

of discretion. Williams v. Drake, 146 F.3d 44, 50 (1st Cir. 1998);

see also United States v. Lemmerer, 277 F.3d 579, 591-92 (1st Cir.

2002). We likewise review a district court's denial of a motion

for mistrial on the grounds of juror misconduct for an abuse of

discretion. United States v. Cruz, 156 F.3d 22, 28 (1st Cir.

1998). We apply a clear error analysis to our review of the

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court's factual findings. United States v. Ortiz-Arrigoitía, 996

F.2d 436, 443 (1st Cir. 1993).

It is well-established that "[w]here a colorable claim of

jury taint surfaces before jury deliberations occur, . . . [t]he

judge should investigate the allegation promptly, addressing

whether the taint-producing event occurred, and if so, assessing

the magnitude and extent of any prejudice caused." Tejeda, 481

F.3d at 52; see also United States v. Barone, 114 F.3d 1284, 1307

(1st Cir. 1997) (quoting Ortiz-Arrigoitía, 996 F.2d at 442) ("When

a non-frivolous suggestion is made that a jury may be biased or

tainted by some incident, the district court must undertake an

adequate inquiry to determine whether the alleged incident occurred

and if so, whether it was prejudicial."). If, upon its

investigation, the court concludes that the alleged taint-producing

event in fact occurred and that it carries with it a risk of

prejudice, the court then must assess what, if any, remedial

measures might serve to remove the prejudice, and if none, consider

the possibility of a mistrial. See Tejeda, 481 F.3d at 52.

The facts here show that the district court abided by

this procedure, and Trinh does not contend -- and in light of the

record, nor could he reasonably do so -- that the court's

investigation as to juror misconduct was insufficient.11 See

11
Indeed, it is clear that the district court acted within its
broad discretion when it decided to remove Juror A. Its
investigation confirmed that several jurors had observed Juror A

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Hunnewell, 891 F.2d at 961 (finding court's investigation into

alleged juror misconduct to be "textbook model" where court

conducted voir dire, consulted counsel and allowed them to

participate in questioning process, and carefully considered

jurors' respective answers as to whether they had seen the

misconduct and/or believed their ability to remain impartial had

been compromised). We thus limit our analysis to Trinh's

contention that the court's dismissal of Juror A created an

improper inference amongst the jury that Juror A was removed for

wrongdoing that members inevitably would associate with Trinh. We

find no merit to this argument.

having separate communications with two defendants. One such
communication was described by the witnessing juror as "[not] just
hello and walk on," but rather, as a communication while Juror A
and Stephanie walked for "about an eighth of a mile;" additionally,
at least two jurors observed Juror A interacting with Trinh while
the latter was holding (or possibly opening) a manila folder. Such
instances were sufficient to raise, at the very least, a
questioning eyebrow, if not a red flag altogether, as to the proper
nature of such juror-defendant interactions. See, e.g., United
States v. Vartanian, 476 F.3d 1095, 1096-97 (9th Cir. 2007)
(finding no abuse of discretion in district court's removal of
juror whom other jurors had observed speaking with defendant,
defendant's family, and defense counsel); United States v. Ford,
184 F.3d 566, 588 (6th Cir. 1999) (upholding district court's
removal of juror where it was alleged that a defendant in a multi-
defendant case had contacted the juror during trial; also upholding
court's denial of defendant's motion for severance and mistrial
where court sufficiently investigated alleged misconduct, examined
the remaining jurors, and confirmed that none had been tainted by
the alleged misconduct); United States v. Thornton, 1 F.3d 149, 154
(3d Cir. 1993) (finding no abuse of discretion where district court
removed a juror who had been observed by a United States marshal
engaging in non-verbal, visual communications, like smiles and head
nods, with the defendant).

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 Of the jurors who witnessed or learned of some form of

interaction between Juror A and Trinh or Stephanie, all expressly

stated that their ability to be impartial remained untarnished, and

none expressed any concern or bias arising from the alleged

incidents of misconduct. The court's questioning of the remaining,

non-witnessing jurors similarly confirmed that none felt as though

their ability to remain fair and impartial had been affected by

Juror A's removal. Additionally, the court's questioning of the

jury following Juror A's removal confirmed that the jurors did not

attribute the removal to the defense; instead, they viewed Juror A

alone as the sole cause of removal.12

Third, during voir dire, the trial judge specifically and

carefully instructed each juror not to talk about the underlying

alleged misconduct or the substance of the judge's questioning. On

returning to trial, the court advised the jury that Juror A's

removal "has nothing to do with the substance of the case," was

12
During voir dire, several jurors volunteered their beliefs that
Juror A had been removed for such reasons as his unusual behavior,
personal commitments, or health issues. For instance, one juror
stated that Juror A told a "bunch of other stories" that made the
juror question "whether [Juror A] can be open-minded or not;"
another described conversations he had with Juror A in which he
seemed "delusional" and "strange;" a third juror surmised that the
court had removed Juror A because he must have "said something that
may have made him seem prejudicial about either the defendants or
the process;" a fourth guessed that, because the trial had gone on
longer than initially anticipated, Juror A had a prior engagement
to which he had to dedicate himself; a fifth believed that Juror A
might have had a health issue that required attention; and another
suggested that Juror A's removal had "nothing to do with the case
or anything, it's just his personal thing."

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"not to bear upon your deliberations," and reminded members "not to

discuss the substance of this case with anyone." The judge's

removal of Juror A, along with the court's curative measures of

issuing repeated instructions to the jury concerning the alleged

misconduct and the juror's removal, ameliorate any concerns of

prejudice in this case. See United States v. Sepúlveda, 15 F.3d

1161, 1195 (1st Cir. 1993) (finding that district court

appropriately refused to declare a mistrial where the judge already

had "removed the offending juror from the case and issued hortatory

instructions to the remaining jurors"); see also Tejeda, 481 F.3d

at 53-54 (finding no abuse of discretion when district court

declined to declare a mistrial after removing a potentially

threatening spectator where it had instructed and "observed the

demeanor" of each juror as to impartiality). Moreover, Trinh's

underlying claim that Juror A's removal in effect prejudiced the

jury against him is inherently weakened by the fact that the jury

acquitted Trinh of money laundering, and also, acquitted Stephanie

-- who allegedly had approached Juror A while he was walking and

engaged in a longer-than-a-simple-greeting conversation.

III. Conclusion

For the foregoing reasons, we find no error in the

district court's rulings, and we affirm Trinh's conviction.

Affirmed.

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