United States v. Valdivia

United States Court of Appeals
For the First Circuit

No. 08-1547

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE VALDIVIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Lipez, Siler* and Howard,
Circuit Judges.

Rachel Brill for appellant.
Warren Vazquez, with whom Rosa Emilia Rodriguez-Velez, United
States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, Chief, Appellate Division and Thomas F. Klumper,
Assistant United States Attorney, were on brief, for the appellee.

May 16, 2012

*
Of the Sixth Circuit, sitting by designation.
 HOWARD, Circuit Judge. Following a jury trial,

defendant-appellant José Valdivia was convicted of conspiracy to

possess with intent to distribute one or more kilograms of heroin,

21 U.S.C. §§ 841, 846, and conspiracy to import one or more

kilograms of heroin into the United States, 21 U.S.C. §§ 952(a),

963, for which he was sentenced to 210 months' imprisonment. On

appeal, Valdivia contends that the district court committed a

litany of errors in (i) denying his motion to dismiss pursuant to

the Speedy Trial Act; (ii) making inappropriate comments during

trial and providing the jury with misleading instructions; (iii)

permitting the government to present inadmissible hearsay and

improper overview testimony; (iv) allowing a government fact

witness to render expert testimony without the requisite

qualification and advance notice; (v) denying multiple requests to

suppress foreign wiretap evidence; and (vi) improperly applying the

guidelines during sentencing. After careful consideration of

Valdivia's claims, we affirm the judgment below.

I. Background

Drawing from the trial record, and excluding facts the

significance of which may depend on the nature of the claim being

raised, we recount the relevant factual background in the light

most favorable to the verdict. United States v. Gonzalez-Ramirez,

561 F.3d 22, 24 (1st Cir. 2009). Due to the fact-specific nature

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of Valdivia's array of claims, we reserve additional factual detail

for the analysis that follows.

Between October 9, 2001 and April 30, 2003, Valdivia

played an integral role in facilitating the distribution efforts of

a substantial Aruba-based drug trafficking organization led by one

José De Sousa. The scheme, insofar as concerns the prosecution of

Valdivia, was relatively simple. De Sousa procured large shipments

of heroin from Venezuela and Colombia, significant portions of

which were diverted to Valdivia for distribution in Puerto Rico.

The drugs were transferred in either of two ways: by strapping,

swallowing, or otherwise affixing bags to traveling couriers; or by

employing cruise line employees to deliver bicycles, the tires of

which were laden with contraband. Valdivia, or his purported

right-hand man, Carlos Pabón, obtained the deliveries and arranged

for their sale and disbursement throughout the greater San Juan,

Puerto Rico area. An associate of De Sousa -- typically his close

confederate Jeffrey Grueninger -- would then make bi-monthly trips

to collect the drug proceeds from Valdivia or Pabón. Grueninger,

who testified for the government at Valdivia's trial, estimated

that over the course of approximately eighteen months, Valdivia

received upwards of 120-125 kilograms of heroin from De Sousa, at

an estimated total street value of roughly $5 million.

The operation began to unravel in October 2001, when

Giovani Castro -- a drug courier for De Sousa, and later a key

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government witness at Valdivia's trial -- was seized in the San

Juan airport, arriving from Aruba with approximately one kilogram

of heroin strapped to his legs. Also discovered in his possession

was a piece of paper containing two phone numbers -- both annotated

with the subscript "José" -- which Castro claimed were provided to

him by José Valdivia in order to arrange delivery of the drugs. A

review of the phone records revealed that one of the numbers, while

registered to a female subscriber, retained the user name of "José

Valdivia."

Shortly after Castro's seizure, Aruban authorities

initiated an investigation of the De Sousa drug network. They

obtained approval from an Aruban court to wiretap De Sousa's

telephones, resulting in the recording of several incriminating

conversations between, among others, De Sousa, Grueninger,

Valdivia, and Pabón. In January 2003, Grueninger was seized at the

Miami International Airport with more than $27,000 in U.S.

currency. A few months later De Sousa was arrested, and a

subsequent search of his home by Aruban authorities yielded in

excess of thirteen kilograms of heroin.

Valdivia was not long to follow; arrested in Puerto Rico

on November 18, 2003, he was charged in a two-count criminal

complaint with conspiracy to possess with intent to distribute, and

import into the United States, one kilogram or more of heroin in

violation of 21 U.S.C. §§ 841, 846, 952(a), and 963. A protracted

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pretrial period ensued, during which both sides filed numerous

motions, requested a host of conferences, and engaged in an

extended series of unfruitful plea negotiations. Ultimately, at

the conclusion of a twelve-day trial that commenced on February 6,

2006, Valdivia was convicted on both counts. This timely appeal

followed.

II. Analysis

A. Speedy Trial Act

Valdivia first challenges the district court's denial of

his motion to dismiss pursuant to the Speedy Trial Act (STA).1

Ordinarily we review such a denial de novo as to legal rulings and

for clear error as to factual findings. United States v. Maxwell,

351 F.3d 35, 37 (1st Cir. 2003). Here, however, although the

parties wage a spirited battle over the applicability of the STA,

we conclude in the end that Valdivia's STA claim has been waived,

or at a minimum, forfeited.

The Speedy Trial Act requires that a criminal defendant's

trial commence within seventy days from the filing of the

information or indictment, or from the date of the defendant's

initial appearance, whichever occurs later. 18 U.S.C.

§ 3161(c)(1). Failure to begin the trial within such time shall,

1
Valdivia did not assert in the district court his Sixth
Amendment right to a speedy trial, nor does he on appeal. He
limits the scope of his argument to the statutory prescriptions of
the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, and we limit our
analysis accordingly.

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upon motion of the defendant, result in dismissal of the charging

instrument either with or without prejudice. Id. § 3162(a)(2).

The Act, however, excepts certain periods of delay from the STA's

seventy-day clock. Two such exclusions hold particular relevance

for this appeal.

The first, set forth in 18 U.S.C. § 3161(h)(1), requires

the automatic exclusion of "[a]ny period of delay resulting from

other proceedings concerning the defendant, including but not

limited to" eight enumerated subcategories of proceedings.2 Id.

(emphasis added). Although § 3161(h)(1) exclusions often fall

within the eight specifically listed subcategories, various non-

enumerated delays have also been held to be automatically excluded

by virtue of the non-limiting "other proceedings" clause. See,

e.g., United States v. Anello, 765 F.2d 253, 256 (1st Cir. 1985)

(holding that time spent engaging in collateral proceedings before

another district judge attacking the lawfulness of grand jury

selection procedures constituted "other proceedings"). The "other

proceedings" language, however, is not a carte blanche for post-hoc

determinations of excludability. In discerning whether a non-

enumerated delay constitutes an "other proceeding," and therefore

warrants automatic exclusion under the STA, several courts have

imposed, or at least implied, some limiting restrictions. See,

2
For completeness, the full text of subsection (h)(1) is
included in an appendix to this opinion.

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e.g., United States v. Lucky, 569 F.3d 101, 107 (2d Cir. 2009)

(requiring at least some semblance of "formal judicial process[]"

to constitute an "other proceeding"); see also Bloate v. United

States, 130 S.Ct. 1345 (2010) (holding that time granted to prepare

pretrial motions is not automatically excludable as an "other

proceeding" under § 3161(h)(1)).

The second relevant exclusion, § 3161(h)(7)3 -- commonly

referred to as the "ends-of-justice" provision -- permits the court

to exclude delays resulting from continuances granted "on the basis

of [the judge's] findings that the ends of justice served by taking

such action outweigh the best interest of the public and the

defendant in a speedy trial." 18 U.S.C. § 3161(h)(7)(A). As a

permissive, rather than automatic, exclusion, the trial court is

required to affirmatively "set[] forth, in the record of the case,

either orally or in writing, its reasons" for granting an ends-of-

justice continuance. Id. Such findings must be entered into the

record by the time a district court rules on a defendant's motion

to dismiss under the STA. Zedner v. United States, 547 U.S. 489,

507 (2006).

In this case, 797 days elapsed between Valdivia's initial

appearance on November 25, 2003, and the filing of his January 31,

3
In October 2008, Congress re-designated this provision from
18 U.S.C. § 3161(h)(8) to § 3161(h)(7). While the parties refer to
the provision as § 3161(h)(8), we will use the current numbering to
avoid the potential for confusion.

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2006 motion to dismiss on STA grounds. See United States v. Hood,

469 F.3d 7, 9 (1st Cir. 2006) ("The [STA] clock . . . stops the day

the defendant files a motion to dismiss for lack of a speedy

trial."). Despite this labyrinth of pretrial activity, the parties

agree that the bulk of this time is properly excluded from the STA

calculation. They dispute the excludability of only two

potentially dispositive spans of time, which can be broken down for

present purposes as follows4:

1. August 21, 2004 - November 4, 2004

The district court held pretrial conferences on May 25,

June 28, and August 6, 2004 to ascertain the status of ongoing plea

negotiations. The minutes from the May 25 and June 28 conferences

state, in relevant part, that the parties were granted thirty-day

periods to finalize negotiations, and that the court would

therefore "toll the speedy trial [act] until [the] next status

conference." The minutes from the August 6 conference also allude

to ongoing plea discussions and grant the parties additional time

to negotiate. In contrast to the minutes from the two previous

conferences, however, the August minutes do not explicitly refer to

the Speedy Trial Act, noting only that another status conference

would be scheduled for September 23, 2004. On August 20, a pending

4
Because the government concedes that sixty-nine days between
November 25, 2003 and January 31, 2006 are not excludable from the
STA calculation, the inclusion of either of the proposed time
periods would be dispositive to Valdivia's STA claim.

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interlocutory appeal previously filed by Valdivia (the pendency of

which had tolled the STA) was denied. Other than the continuation

of plea negotiations, neither the parties nor the district court

docket indicate any additional formal activity until November 5,

2004, when Valdivia filed a motion requesting a status conference,

again tolling the STA clock.5 See 18 U.S.C. § 3161(h)(1)(D). The

parties dispute whether the period between the denial of the

interlocutory appeal on August 20 and the November 5 filing of the

motion for a status conference should be excluded.

2. November 10, 2004 - November 29, 2004

On November 9, 2004, the Court held another status

conference pursuant to Valdivia's November 5 request. The minutes

note in pertinent part that "[t]he government provided [a] copy of

the plea agreement to the defense. [Defense counsel] will review

and discuss the same with his client. Since the parties were

negotiating a plea agreement in this case, the court has granted

the defendant until November 29, 2004 to object [sic] Magistrate

Judge's Report and Recommendation [] as to the motion for bill of

particulars. . . ."6 On November 29, 2004, Valdivia filed an

5
For reasons unclear from the record, it appears that the
pretrial conference scheduled for September 23, 2004 was never
actually held.
6
On March 10, 2004, Valdivia had filed a motion for a bill of
particulars. On May 4, 2004, the magistrate judge recommended that
the trial judge deny the motion. The government hints that the
209-day period between the issuance of the magistrate judge's
report on May 4, and the filing of the defendant's objection on

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objection to the magistrate's report and recommendation, which once

more tolled the STA. See id. Here, the parties dispute the

excludability of the time between the November 9 status conference

and the filing of objections to the report and recommendation on

November 29.

The government advances two theories for excluding these

periods of delay. First, it proposes the application of

§ 3161(h)(7), arguing that the ends of justice served by tolling

the STA for plea negotiations that occurred throughout the disputed

periods outweigh the interests of according the defendant and the

public a speedy trial. The problem with this argument is that

there was no "ends-of-justice" finding entered into the record,

despite the statute's requirement that such a finding be made by

the trial judge. See § 3161(h)(7)(A); Zedner, 547 U.S. at 507. In

constructing such a finding, the district court need not recite a

formulaic incantation of the "ends-of-justice" language, but it

must articulate clearly the reasons that support an ends-of-justice

continuance. See Zedner, 547 U.S. at 506-07 (holding that "the Act

requires express findings," and that a mere "passing reference to

November 29, might be excludable on the basis of this pending
motion. It is not. See 18 U.S.C. §§ 3161(h)(1)(D), (h)(1)(H);
United States v. Thomas, 788 F.2d 1250, 1257 (7th Cir. 1986)
(holding that the speedy trial clock begins to run as soon as the
magistrate judge files the report and recommendation, and tolls for
up to thirty days, upon objection of either party, for the district
court to take the matter "under advisement" pursuant to 18 U.S.C.
§ 3161(h)(1)(H)).

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[a] case's complexity" would be an insufficient basis for an ends-

of-justice continuance); United States v. Pakala, 568 F.3d 47, 60

(1st Cir. 2009) ("[A] district court must make on the record

findings justifying the grant of any 'ends of justice'

continuance.").

Here, it is far from clear that the limited STA

references in the May 25 and June 28 pretrial conference minutes

(and conspicuously absent from the August 6 and November 9 minutes)

-- which respectively tolled the Act only until "the next pretrial

conference" -- would function as an adequate basis for a

§ 3161(h)(7) exclusion of either of the contested periods between

August 21 and November 29. Absent the requisite ends-of-justice

findings, we may not apply § 3161(h)(7) retrospectively. See

Zedner, 547 U.S. at 506 (rejecting the government's argument that

the required ends-of-justice finding could be supplied ex post

facto on remand).

As an alternative basis for exclusion, the government

contends that plea negotiations constitute non-enumerated "other

proceedings" pursuant to § 3161(h)(1). Thus, the government

argues, because the parties engaged in sporadic plea negotiations

between August 21 and November 29, 2004, the corresponding

timeframes should be automatically excluded from the STA's seventy-

day calculus. To the extent that other circuits have considered

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the issue of whether plea negotiations fall within the ambit of

§ 3161(h)(1)'s "other proceedings" clause, they are divided.7

Although we have yet to squarely address this issue, it

is not necessary for us to do so here, as Valdivia has waived, or

at least forfeited, his STA claim. Generally, under the Act, a

defendant's failure to move for dismissal of the charging

instrument prior to trial "shall constitute a waiver of the right

to dismissal." 18 U.S.C. § 3162(a)(2). While an issue not raised

in the district court is typically reviewed for plain error on

appeal, see Fed. R. Crim. P. 52(b), under the STA the failure to

move to dismiss the indictment constitutes a waiver, rather than a

forfeiture. United States v. Rodríguez-Durán, 507 F.3d 749, 768

(1st Cir. 2007); United States v. Spagnuolo, 469 F.3d 39, 45-46

(1st Cir. 2006).

Moreover, courts have held that even where a defendant

timely files a motion to dismiss under the Speedy Trial Act, his

failure to identify specific arguments will result in a waiver of

those arguments on appeal. See, e.g., United States v. Seals, No.

10-4192, 2011 WL 6188699, at *2 (10th Cir. 2011) ("[W]e may not

7
Compare United States v. Leftenant, 341 F.3d 338, 344-45
(4th Cir. 2003) (holding that plea negotiations trigger automatic
exclusion pursuant to 18 U.S.C. § 3161(h)(1)); United States v. Van
Someren, 118 F.3d 1214, 1218-19 (8th Cir. 1997) (same); United
States v. Montoya, 827 F.2d 143, 150 (7th Cir. 1987) (same); United
States v. Bowers, 834 F.2d 607, 610 (6th Cir. 1987) (same), with
United States v. Alvarez-Perez, 629 F.3d 1053, 1058 (9th Cir. 2010)
(holding that plea negotiations do not trigger automatic exclusion
pursuant to 18 U.S.C. § 3161(h)(1)); Lucky, 569 F.3d at 107 (same).

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conduct any review of Speedy Trial Act arguments unraised below,

not even for plain error. . . . [N]ot only must the defendant seek

dismissal [on STA grounds] prior to trial, but he must do so for

the reasons he seeks to press on appeal."); see also United States

v. O'Connor, 656 F.3d 630, 638 (7th Cir. 2011) (finding forfeiture

at a minimum, but noting that "the text of § 3162(a)(2) -- read as

a whole and in light of the [Supreme] Court's language in Zedner --

strongly suggests that violations not specifically identified in

the defendant's motion to dismiss are waived, not forfeited");

United States v. Oberoi, 547 F.3d 436, 458 (2d Cir. 2008), vacated

& remanded on other grounds, 130 S.Ct. 1878 (2010).

In the district court, Valdivia asserted in his pretrial

motion to dismiss that an entirely separate 104-day period from

October 26, 2005 through his trial date of February 6, 2006 was not

excludable under the STA, a claim which the district court

summarily denied, and that Valvidia now concedes. Nowhere in the

motion did Valdivia identify the periods of time that he now

purports to challenge as non-excludable; accordingly, there is a

strong basis for finding the argument waived.8

Even if his challenge has not been waived, but merely

forfeited, Valdivia cannot establish plain error. See United

8
Nor may an argument be made that the issue was raised during
trial, as such tardiness also results in waiver. See 18 U.S.C.
§ 3162(a)(2); Zedner, 547 U.S. at 506. The argument must be raised
prior to trial, and there is nothing in the pretrial record to
suggest that the appellant's current argument was timely proposed.

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States v. Turbides-Leonardo, 468 F.3d 34, 38 (1st Cir. 2006)

(forfeiture of an argument compels plain error review). As we have

yet to address whether plea negotiations are automatically

excludable under § 3161(h)(1), and there is no consensus among the

circuits on the issue, we are not inclined to find that the

district court's failure to identify, sua sponte, the violation

that Valdivia presses before us was "clear or obvious," if error at

all. See United States v. Marino, 277 F.3d 11, 32 (1st Cir. 2002)

(declining to find plain error where the law was unsettled); United

States v. Diaz, 285 F.3d 92, 97 (1st Cir. 2002) (where law on issue

was unsettled in First Circuit and other circuits were split, error

could not be deemed "plain"). Consequently, we reject Valdivia's

Speedy Trial Act claim.

B. Judicial Commentary and Jury Instructions

The appellant next alleges that at various junctures, the

district court inaccurately and prejudicially commented on the

evidence, thus skewing the proceedings and depriving him of an

impartial trial. Specifically, he contends that, in making

several remarks during trial and in issuing instructions, the trial

judge (1) bolstered the perceived strength of the government's

case, (2) assumed the otherwise contested identification of

Valdivia's voice on certain wiretap recordings, and (3) presaged

the present appeal, thereby implying the judge's expectation of a

conviction. We address these claims in turn.

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 1. Strength of the Evidence

As part of its case-in-chief, the government presented

evidence -- including the testimony of a Drug Enforcement Agency

(D.E.A.) chemist, and a copy of the chemist's forensic laboratory

report -- to show that the substance possessed by Giovani Castro

upon his arrest, and intended for delivery to Valdivia, was in fact

heroin. Because the substance itself had been destroyed by the

government prior to trial, defense counsel objected that the chain

of custody was deficient, leading to the following exchange with

the trial judge in front of the jury:

Defense Counsel: The case against my client
relies on [the drugs seized from Castro on
October 9, 2001]. [. . .]

Court: Partially. It does partially, because
even if the drugs do not exist . . . there is
plenty of other evidence here, if the jury
believes it, to convict your client.

Defense Counsel: [. . .] What can we do with
[destroyed] evidence and . . . partial
testimony?

Court: Sir, if I eliminate the drugs [found on
Castro], the case still goes against your
client, based on the testimony of all the
other witnesses. [. . .] And then the jury
will decide.

The court then excused the jury at the government's request, and

further explained:

[T]o make matters very clear, even if the
Court eliminates the [drugs found on Castro]
and gives an instruction to the jury to
disregard the transaction of [Castro], this
case still goes to the jury because there was

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 plenty of evidence provided by the cooperator
that he provided heroin to . . . and collected
from [Valdivia].

Upon its return, the jury was instructed that the chain-of-custody

issue raised by defense counsel affected only the weight, and not

the admissibility, of the chemist's testimony.

At the beginning of the next trial day, the judge

prefaced his issuance of a lengthy superseding instruction by

noting that, "last [trial day], . . . there was a discussion

between counsel [and with the Court] as to the law . . . and I am

going to . . . order you to disregard anything that you may have

heard as to that discussion[,] and the instruction [from] that day

is . . . superseded by this instruction. . . ." To eliminate any

"created confusion," the court then proceeded to define the

elements of criminal conspiracy, explaining in pertinent part:

[S]ince overt acts are [no longer a] necessary
[element of conspiracy], the . . . physical
presence of drugs is not required, because
that would be an overt act. [In] this case,
however, the [government] has chosen to prove
overt acts. And there have been many overt
acts allegedly testified. And you will
provide credible [sic], yes or no, as to those
overt acts. And I am ordering that you . . .
are not to decide credibility until the end of
the case when you have all of the evidence in.
Examples of overt acts are the fact that drugs
came in . . . tires of bicycles[,] . . .
whether or not a person went to charge for the
drugs, and whether or not a person went to
deliver the drugs. All of those are overt
acts. [. . .] The defense can challenge [the
overt acts], and it will be up to you to
decide whether or not the [government] has
proven [them].

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(emphasis added). According to Valdivia, the judge's comments and

the highlighted portions of the instructions fostered the

impression that the court had prematurely concluded that the

evidence was sufficient, effectively usurping the jury's ability to

weigh it for proof of guilt. We disagree.

A trial judge is the "governor of the trial for the

purpose of assuring its proper conduct, and has a perfect right -

albeit a right that should be exercised with care - to participate

actively [at trial]." Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.

1997) (internal citation omitted). Trial judges in the federal

system thus retain the power to "analyze, dissect, explain,

summarize, and comment on the evidence," so long as their

participation is balanced, and does not render unfair advantage to

either party. Id. Ultimately, an inquiry into the propriety of a

judge's actions in this regard will turn on whether the complaining

party can show serious prejudice. See United States v. González-

Soberal, 109 F.3d 64, 72 (1st Cir. 1997).

After a painstaking review of the trial record, we

conclude that the judge's actions did not amount to reversible

error. As a preliminary matter, all of the challenged statements

and instructions were provided with a single purpose in mind: to

resolve any confusion caused by defense counsel's assertion, in the

presence of the jury, that the unavailability of the substance in

Castro's possession was somehow dispositive of the government's

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case. The court was merely attempting to clarify the elements

necessary for a finding of guilt. See United States v. Quesada-

Bonilla, 952 F.2d 597, 600-01 (1st Cir. 1991) (failing to find

prejudice in part because "defense counsel . . . provoked the

court's comment").

There is little doubt that, in doing so, some of the

language employed -- "there is plenty of other evidence . . . to

convict your client," and "the case still goes against your client"

-- if considered in isolation, could give a reviewing court some

pause. But we cannot read such words as singular, insular

statements; rather, we must gauge them in light of the overall

record. Logue, 103 F.3d at 1046; United States v. Richman, 600

F.2d 286, 296 (1st Cir. 1979). Properly viewed in that broader

context, the contested statements were contemporaneously tempered

by qualifying language like "if the jury believes it" and "then the

jury will decide," and any lingering untoward effects were almost

certainly cured by the court's mandate to disregard the remarks,

and its numerous and explicit reminders that the jury alone retains

the exclusive function of judging the facts. See United States v.

Candelaria-Silva, 166 F.3d 19, 36 (1st Cir. 1999) (holding that

jury instructions are a useful means of allaying potential

prejudice). Thus, the court's commentary, though in some instances

perhaps inartfully constructed, did not substantially taint the

proceedings.

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 We similarly fail to discern any error as to the

substance of the court's curative instruction on the elements of

conspiracy. The use of evidentiary exemplars from the body of

existing trial evidence to illustrate the meaning of "overt acts"

was not improper; we have repeatedly stated that the "trial judge

is not limited to instructions in the abstract. The judge may

explain, comment upon and incorporate the evidence into the

instructions in order to assist the jury to understand it in light

of the applicable legal principles." United States v. Maguire, 918

F.2d 254, 268 (1st Cir. 1990) (internal citation omitted). This is

precisely what the court did: incorporate the evidence in order to

explicate the governing law. In plumbing any other meaning, the

appellant is most assuredly overreaching.

2. Voice Identification

The appellant's second claim of inappropriate conduct

fares no better. Faced with the proffer of recordings from the

Aruban wiretap investigation, defense counsel objected, questioning

the authenticity of the tapes and submitting that there was

insufficient foundational proof that the voice was indeed that of

the defendant. The court, in addressing the objection at some

length, made the following remark before the jury, which the

appellant now urges must result in vacating his conviction:

Whether [the tapes are] going to be played to
the jury, remember what I said, please . . . .
The jury is not going to hear any of this
until I'm satisfied that those tapes contain

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 Mr. Valdivia, and whether or not I can -
somebody can identify his voice.

(emphasis added). Valdivia submits that the court's subsequent

admission of the recordings, in conjunction with this statement,

left the jury with little choice but to conclude that the voice on

the tapes belonged to him.

As noted above, in determining the prejudicial effect of

such a statement, we review it not independently, but as part and

parcel of the record in its entirety. Logue, 103 F.3d at 1046;

Richman, 600 F.2d at 296. That record, upon closer inspection,

divulges meaningful pieces of the exchange that were omitted from

the appellant's brief. For example, almost immediately prior to

the contested statement, the court opined:

[T]his Court . . . will not allow any
arguments, relating to any other tape but the
tape of Mr. Valdivia if somebody identified
the voice of Mr. Valdivia. So whatever
happened that may be in that tape . . .
relating to any other person other than Mr.
Valdivia, . . . I'm not going to allow [it].
[. . .] [T]he only tapes [to] be played and
produced in evidence will be the tapes of the
Defendant if somebody . . . properly
identified the tapes of the Defendant. [. .
.] [T]he only case I have is if somebody
identifies the tapes, that this José Valdivia
is him. And I don't know if it will be,
because it will be the jury that will decide
if the voice identification made is reliable
to them. It's not going to be me, it's going
to be ultimately the jury.

(emphasis added). A short time later, the court continued:

[T]he Court admits the tape, subject to the
weight the jury may provide because . . . the

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 fact that the Court accepts a document does
not mean that you have to provide it weight.
The weight will depend on the credibility and
the defendant may attack the weight of the
[tape]. [. . .] The Defendant is not
precluded and can challenge the . . . tape.

These statements, and the court's many admonitions to reserve

judgment until all of the evidence had been presented, were enough

to ameliorate any perceived impropriety. See Richman, 600 F.2d at

296 (holding that similar instructions to the jury "effectively

cured whatever error had been made").9

3. Predicting the Appeal

The appellant's final charge of prejudicial commentary,

which he raises for the first time on appeal, need not detain us.

Confronted on several occasions with the need for English

translations, the court noted that such translations were required

"for appeal purposes," and reflected on the importance of "making

a proper record for appeal." The appellant's brief is devoid of

any developed argumentation on the issue, offering only an oblique

suggestion that, "in conjunction with the other prejudicial

remarks," the comments "warrant closer consideration." Such sparse

elaboration falls far short of the development required for

consideration on appeal, and we could reject the claim on this

ground alone. See United States v. Zannino, 895 F.2d 1, 17 (1st

9
We note that the far more preferable forum for these types
of exchanges is the sidebar conference, through which virtually any
risk of prejudice could have been easily avoided here.

-21-
Cir. 1990) (holding that "issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,

are deemed waived").

Moreover, the record here reflects a wholly rational

explanation for the court's references. As we have said, "it is

clear, to the point of transparency, that federal court proceedings

must be conducted in English . . . . [And] parties are required to

translate all foreign language documents into English." United

States v. Rivera-Rosario, 300 F.3d 1, 5, 7 n.4 (1st Cir. 2002).

Normally, the submission of foreign documents unaccompanied by

English translations is error, and such documents would not be

considered on appeal. See United States v. Contreras Palacios, 492

F.3d 39, 43 n.7 (1st Cir. 2007). The court, in neutrally

referencing the preservation of the record, was merely explaining

to the jury the significance of the translations in light of these

stringent rules. Such comments were not impermissible, let alone

prejudicial.

C. Hearsay, Overview, and Bolstering Testimony

In the first of several evidentiary challenges, Valdivia

contests the admission of certain testimony from three of the

government's primary witnesses: Immigration and Customs Enforcement

agent Eliú Estrada, who interrogated the courier Giovani Castro

after his October 2001 arrest; D.E.A. agent Vincent Carpio, who

supervised the American investigation of Valdivia's activities; and

-22-
Jan Meulenberg, the Aruban officer who spearheaded the De Sousa

wiretap operation. We review the preserved challenge to Estrada's

testimony for abuse of discretion, but because the appellant failed

to raise contemporaneous objections to the statements of Carpio and

Meulenberg, we review the court's decision to admit that testimony

only for plain error. See United States v. Brown, Nos. 09-2402,

10-1081, 2012 WL 149484, at *7 (1st Cir. January 19, 2012). If any

of the identified testimony was improperly admitted, we may still

"affirm [the] judgment of conviction where the government has met

its burden of showing that any such error was harmless beyond a

reasonable doubt." United States v. Cabrera-Rivera, 583 F.3d 26,

36 (1st Cir. 2009) (internal citation omitted).

1. Testimony of Agent Estrada

On the first day of trial, Agent Estrada provided a

comprehensive account of Castro's arrest, which included several of

Castro's post-arrest statements. For example, as recounted by

Estrada, Castro "explained that he [had been] approached in Aruba

by an individual called . . . José, to see if he wanted to bring

some narcotics into the United States," and provided authorities

with a detailed description -- reproduced by Estrada on the stand

-- of the process by which he was fitted for and supplied with the

drugs for delivery to Valdivia. The appellant now contends, as he

did below, that this testimony constituted inadmissible hearsay,

which the trial court erroneously admitted under the co-conspirator

-23-
exception to the hearsay rules. See Fed. R. Evid. 801(d)(2)(E)

(providing that a statement will be excluded from the rules of

hearsay where it "was made by the party's co-conspirator during and

in furtherance of the conspiracy").

The government concedes the point, acknowledging that the

statements were not made in furtherance of the alleged conspiracy.

Instead, the government makes a somewhat strained argument that the

testimony was admissible for the non-hearsay purpose of providing

context or background to show the basis for the government's

actions. Put another way, the government would have us believe

that it meant for the jury to take Castro's statements, as recalled

by Estrada, only for the fact that he made them, and not for their

truth. We need not reach the merits of the government's

alternative argument, however, because we find that the admission

of this material, if erroneous, was harmless error.

Even if the challenged testimony was inadmissible

hearsay, the source of the out-of-court statements -- Giovani

Castro -- later testified himself, and was subject to thorough

cross-examination by defense counsel. He largely corroborated

Estrada's account, repeating many of the same details, and the few

discrepancies were adroitly incorporated by the defense to

undermine the credibility of both witnesses. In short, the

purported hearsay testimony is cumulative of other evidence in the

record, and the error in admitting the statements under the co-

-24-
conspirator exception was harmless. See United States v. Piper,

298 F.3d 47, 58 (1st Cir. 2002) ("Cumulative evidence is typically

regarded as harmless.").

2. Testimony of Agent Carpio and Officer Meulenberg

In a quite different claim of error, Valdivia relies on

several of our recent cases to assert that various statements from

witnesses Carpio and Meulenberg amounted to improper "overview"

testimony. See, e.g., United States v. Meises, 645 F.3d 5 (1st

Cir. 2011); United States v. Flores-De-Jesús, 569 F.3d 8 (1st Cir.

2009); United States v. Casas, 356 F.3d 104 (1st Cir. 2004).

Because the argument was not preserved below, we review it now

through the lens of plain error.10 See United States v. Andújar-

Basco, 488 F.3d 549, 554 (1st Cir. 2007). To prevail under this

standard, the appellant must demonstrate that there was a clear or

obvious error that seriously affected not only his substantial

rights, but also the fairness, integrity, or public reputation of

the judicial proceedings. Id.

In its problematic form, overview testimony comprises

declarations by a witness -- most commonly a law enforcement

officer involved in the relevant investigation -- presented in the

early phases of a criminal trial to describe the government's

10
Although the record was peppered with objections by defense
counsel, we are unable to identify any objection to this testimony
on the "overview" grounds now presented on appeal. Absent a
contrary indication by the appellant, we therefore deem the
argument forfeited, and review it for plain error only.

-25-
general theory of the case. See United States v. Vázquez-Rivera,

665 F.3d 351, 356 (1st Cir. 2011); Meises, 645 F.3d at 14 n.13

(noting that such evidence "often provides an anticipatory summary

of the prosecution's case by previewing the testimony of other

witnesses"). Because the witness is, in essence, testifying about

the results of a criminal investigation before the government has

presented any evidence -- often including aspects of the

investigation in which he did not actually participate -- we have

repeatedly admonished the use of such testimony. United States v.

Rosado-Pérez, 605 F.3d 48, 55 (1st Cir. 2010). Specifically, we

have cautioned that "the evidence promised by the overview witness

[might] never materialize[]," and that even if it does, the

testimony still "represents a problematic endorsement of the

veracity of the testimony that will follow." Vázquez-Rivera, 665

F.3d at 356 (internal citation omitted).

Although the questionable use of overview witnesses has

become something of a troubling trend, see Flores-De-Jesús, 569

F.3d at 17, the declarations at issue here are largely

distinguishable from those that we have previously considered

problematic. On the second day of trial, Agent Carpio testified

that "De Sousa was bringing drugs into the island of Aruba for

further distribution into different areas in the Caribbean,

including the United States, Puerto Rico, and Europe," and was

"smuggling the proceeds . . . back [to] Aruba." In a similar vein,

-26-
halfway through trial, Officer Meulenberg testified that he "was

the leader of the group that . . . investigat[ed] a group of

persons led by [De Sousa]," and explained that "[De Sousa] was

. . . buying drugs in Colombia and Venezuela and selling drugs, not

only to the local market but to the American . . . and European

market[s]." He also testified that the potential involvement of an

airport security guard, a cruise-ship official, and a police

officer in the suspected criminal activities was a major impetus

for the investigation.

Unlike prior cases where we have criticized the use of

overview witnesses, the prosecution here laid a sufficient

foundation that both Meulenberg and Carpio had personal knowledge

of the alleged conspiracy. Officer Meulenberg testified that he

led the Aruban investigation of drug activity involving De Sousa,

assisted in preparing the report submitted to obtain the Aruban

wiretap, participated in wiretap surveillance, and conducted the

arrests and home searches of several of the conspiracy's

participants, including De Sousa. Similarly, Carpio testified that

he was the American liaison to the Aruban investigation, that he

reviewed the wiretap recordings and pertinent telephone records,

which were ultimately entered into evidence, and that he had

conducted his own independent investigation of Valdivia's role in

De Sousa's activities. Thus, far from being a scripted "overview"

of the government's case by uninvolved agents, the testimony

-27-
represented the fruits of first-hand police work. See Rosado-

Pérez, 605 F.3d at 55-56 (concluding that the prosecution had laid

a sufficient foundation of personal knowledge where the testifying

agent "was the lead investigator . . . and . . . participated in

video and personal surveillance, wiretap surveillance, and

controlled drug buys").

To the extent that Carpio and Meulenberg described the

cast of characters as an "organization" or "group" -- a

characterization, as we have noted, to which the appellant did not

object -- any misstep was heavily outweighed by the substantial

evidence of the appellant's guilt, which included wiretap

recordings, phone records, and co-conspirator testimony, among

other things. See, e.g., Flores-De-Jesús, 569 F.3d at 27-31

(finding the use of overview testimony ameliorated in part by the

substantial evidence of defendant's guilt). As such, we find that

the admission of this testimony was not plainly erroneous.

3. Bolstering

On three occasions during the government's case, the

prosecutor elicited testimony from agents Estrada and Carpio that

they had "corroborated" or "verified" various aspects of their

investigation, including the content of certain statements made by

co-conspirators Giovani Castro and Jeffrey Grueninger. Although

Valdivia failed to properly object to this testimony at trial, he

now contends that it constituted a form of due process violation

-28-
known as bolstering. The argument, for the reasons elucidated

below, is unavailing.

Generally, "[b]olstering occurs when [a] prosecutor

implies that [a] witness's testimony is corroborated by evidence

known to the government but not known to the jury." United States

v. Francis, 170 F.3d 546, 551 (6th Cir. 1999); see also United

States v. Balsam, 203 F.3d 72, 88 (1st Cir. 2000) (noting that a

prosecutor may not "indicate that facts outside the jury's

cognizance support the testimony of the government's witnesses").

While prosecutors can commit improper bolstering during argument to

the jury, the issue may also arise through the testimony they

elicit from other government witnesses on direct examination.

United States v. Rosario-Díaz, 202 F.3d 54, 65 (1st Cir. 2000).

Here, the appellant asserts that the contested statements

improperly bolstered the prosecution's case by suggesting to the

jurors that the government had undisclosed evidence which

independently supported the existence of the charged conspiracy.

Because the evidence underlying each of the three purported

instances of bolstering was ultimately presented to the jury,

however, the testimony did not run afoul of Valdivia's due process

rights. We explain briefly.

In the first instance, Agent Estrada testified that he

was able to "corroborate" that the "José" identified by Castro as

his point of contact in Puerto Rico was indeed José Valdivia. This

-29-
corroboration, he explained, was enabled in part by information

obtained from subpoenaed phone records, which were subsequently

entered into evidence. In the second instance, Estrada later

testified that during the course of the investigation, he was able

to "determine" that two different men named "José" were pertinent

to the conspiracy. The sources for this determination, which can

be divined from the surrounding testimony -- including phone

records and information from at least one witness -- were later

presented for the jury's consideration. In the third and final

instance, Agent Carpio testified that "[a]fter the arrest of

[Jeffrey] Grueninger in Miami, we were able to debrief him and help

him identify the voices on the [Aruban wiretap tapes], and that's

how we obtained the identification of Mr. Valdivia later on, how we

were certain who he was." The recordings to which Carpio alluded

were all played for the jury.

In order for a criminal defendant to establish a

colorable claim of bolstering, the challenged statements must do

more than simply "bolster" the government's case. Criminal

prosecution is, after all, nothing more than the use of evidence to

bolster the government's allegations of criminal conduct. The

potential for impropriety emerges only when such bolstering is

predicated upon unsubmitted evidence, thereby implying some indicia

of reliability on the basis of materials that may or may not exist.

See Francis, 170 F.3d at 551 (noting that "bolstering" occurs under

-30-
the implication that "testimony is corroborated by evidence known

to the government but not known to the jury") (emphasis added).

Here, in every instance, the evidence supporting the

"corroborat[ions]" and "determin[ations]" was eventually put before

the jury. Thus, whatever objections Valdivia might have been able

to raise against these lines of questioning, bolstering is not one

of them.

To the extent that the appellant alternatively

characterizes this challenged testimony as improper witness

vouching, the argument misses the mark. A prosecutor (or

government witness) improperly vouches for a witness when she

"impart[s] her personal belief in a witness's veracity or impl[ies]

that the jury should credit the prosecution's evidence simply

because the government can be trusted." United States v. Pérez-

Ruiz, 353 F.3d 1, 9 (1st Cir. 2003). The conduct of the witnesses

here does not fit the bill. They did not testify that Castro and

Grueninger were truthful, honest, or reliable, or that their

statements should be believed because of their affiliation with the

government. Rather, they confirmed, through independent sources,

the veracity of certain facts attested to by the cooperating

witnesses, conduct that is conceptually distinct from witness

vouching.11

11
The term "bolstering" has, on occasion, also been used as
a shorthand for the concept of improper witness vouching. Despite
some conceptual overlap, the proscription on improper witness

-31-
 D. Agent Carpio's Lay Witness Testimony

During trial, the government introduced evidence linking

Valdivia to one of the two phone numbers found in Giovani Castro's

possession at the time of his arrest, which referenced only the

name "José." That evidence included, inter alia, testimony from

the issuing phone company's custodian of records, who explained

that while the account's subscriber was an inconsequential third

party, its registered user name was in fact "José Valdivia."

In an effort to undermine this link to his client,

defense counsel subsequently cross-examined Special Agent Carpio

concerning the fact that a second phone number, found in the

possession of another of De Sousa's couriers, was ascribable to a

"José" with a different surname -- one José Camilo. On redirect

examination, the prosecutor and Carpio engaged in the following

colloquy over the objection of defense counsel:

Prosecutor: According to your experience as a
narcotics investigator, how . . . does a
telephone number registered in the name of a
person compare with the practice of money
traffickers of putting their telephone numbers
in the names of third parties?

S.A. Carpio: Based on my training and
experience, whenever traffickers utilize cell
phones, they try to disguise names by placing
it into somebody else's name, or there are
phone companies that allow you to give names
without any proper identification. Therefore,
masking the real user of the telephone.

vouching should not be confused with the rule against "bolstering"
as it is used in cases like Francis and Balsam.

-32-
 Valdivia now challenges the admission of this testimony

on two grounds: (1) that the district court erred in permitting

Carpio to cross the line from fact witness to expert witness

without the appropriate qualification and prior notice, see Fed. R.

Crim. P. 16(a)(1)(G), 26(a)(2); and (2) that even if Carpio's

statements were properly characterized and admitted as expert

testimony, they constituted "unwarranted and unreasonable use of

[such] testimony about matters within the ordinary comprehension of

jurors." We review the admission of lay opinion and expert

testimony for manifest abuse of discretion. United States v.

Lizardo, 445 F.3d 73, 83 (1st Cir. 2006); United States v. Montas,

41 F.3d 775, 783 (1st Cir. 1994).

The admissibility of lay opinion testimony is governed by

Federal Rule of Evidence 701, which provides:

If a witness is not testifying as an expert,
testimony in the form of [opinions or
inferences] is limited to [those which are]
(a) rationally based on the witness's
perception; (b) helpful to clearly
understanding the witness's testimony or to
determining a fact in issue; and (c) not based
on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

Fed. R. Evid. 701 (emphasis added). Valdivia claims primarily

that, as "scientific, technical, or other specialized knowledge,"

Carpio's testimony contravenes prong (c) of Rule 701. That prong,

appended to the rule by amendment in 2000, was intended to

"eliminate the risk that the reliability requirements set forth in

-33-
Rule 702 will be evaded through the simple expedient of proffering

an expert in lay witness clothing." Fed. R. Evid. 701, Advisory

Committee's note to the 2000 amendments. While such sentiment is

expedient in the abstract, the line between expert testimony under

Rule 702 and lay opinion testimony under Rule 701 is, in practice,

"not [an] easy [one] to draw." United States v. Colón Osorio, 360

F.3d 48, 52-53 (1st Cir. 2004); see also United States v. Hilario-

Hilario, 529 F.3d 65, 72 (1st Cir. 2008) ("There is no bright-line

rule to separate lay opinion from expert witness testimony.").

Indeed, as we have previously noted, "the same witness - for

example, a law enforcement officer - may be qualified to 'provide

both lay and expert testimony in a single case.'" United States v.

Ayala-Pizarro, 407 F.3d 25, 28 (1st Cir. 2005) (quoting Fed. R.

Evid. 701, Advisory Committee's note). The statements proffered by

Special Agent Carpio, however, do not straddle that hazy line, but

rather fall comfortably within the boundaries of permissible lay

opinion testimony.

It required no scientific or technical expertise within

the scope of Rule 702 for Carpio to conclude, based on his

experience in prior drug investigations, that traffickers often

list unrelated third parties as their telephones' subscribers, and

that, in this case, the phone account at issue was organized under

a similar scheme. Such testimony was a product of Carpio's

requisite personal knowledge, see Fed. R. Evid. 602, and also met

-34-
the requirements of Rule 701, because it was derived from

"particularized knowledge that [Carpio had obtained] by virtue of

his . . . position" as a drug enforcement agent tasked with

investigating the De Sousa narcotics ring, Fed. R. Evid. 701,

Advisory Committee's note. The district court therefore properly

exercised its considerable discretion in admitting Carpio's

testimony pursuant to Rule 701. See United States v. Maher, 454

F.3d 13, 24 (1st Cir. 2006) (holding that an officer's testimony

that, based on his experience, certain post-it notes were likely

drug orders and the number "4" likely referred to a quantity of the

drug found by law enforcement "did not cross the line to become

expert testimony"); Ayala-Pizarro, 407 F.3d at 29 (finding that an

officer's testimony that heroin seized at drug points was typically

packed in aluminum decks and that the heroin seized in the case was

packaged in such decks was Rule 701 testimony).

That Carpio's testimony was of the lay opinion variety

necessarily precludes Valdivia's second argument, that the use of

an expert was improper. Because the argument also fails on the

merits, however, we will address it briefly.

We have held, as Valdivia notes, that where expert

testimony on a subject is "well within the bounds of a jury's

ordinary experience," the risk of unfair prejudice outweighing

probative value is not improbable. See Montas, 41 F.3d at 781-84.

In essence, the appearance of an expert's imprimatur upon the

-35-
government's theory might unduly influence the jury's assessment of

the inference being urged. Id. at 783-84. We are not faced with

such a scenario here. For one thing, the challenged testimony was

elicited by the government in direct response to defense counsel's

line of questioning. The appellant, under the circumstances

presented, cannot earnestly question the government's attempt to

re-forge inferential links that he himself sought to sever. More

importantly, the testimony was not so obviously within the jury's

bounds of knowledge as to negate all probative value. The average

juror may not be aware that some phone companies permit account

subscriptions without the presentation of identification, nor might

some jurors know that such a scheme is a common tactic for drug

traffickers to conceal their identities. Accordingly, we find no

abuse of discretion.

E. Failure to Suppress the Aruban Wiretap Evidence

We next consider the appellant's suppression claim.

Immediately following the jury's verdict, Valdivia filed a motion

for judgment of acquittal and/or a new trial, see Fed. R. Crim. P.

29, arguing in part that the Aruban wiretap violated his Fourth

Amendment rights, and evidence derived therefrom should have been

suppressed under the exclusionary rule.12 We review de novo the

12
This claim was also the subject of multiple motions to
suppress, a pre-trial order of the district court, and several
admissibility rulings during trial. Valdivia, however, elects to
raise the issue in the context of his Rule 29 motion.

-36-
district court's denial of Valdivia's Rule 29 motion. United

States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009).

Ordinarily, the Fourth Amendment's exclusionary rule does

not apply to foreign searches and seizures, for "the actions of an

American court are unlikely to influence the conduct of foreign

police." United States v. Hensel, 699 F.2d 18, 25 (1st Cir. 1983).

There are, however, two well-established exceptions to this rule:

(1) where the conduct of foreign police shocks the judicial

conscience, or (2) where American agents participated in the

foreign search, or the foreign officers acted as agents for their

American counterparts. United States v. Mitro, 880 F.2d 1480, 1482

(1st Cir. 1989).

Valdivia has not alleged, nor is there any indication,

that the conduct of Aruban authorities in this instance might shock

the judicial conscience; instead, Valdivia relies on the latter

exception -- commonly referred to as the "joint venture" doctrine

-- claiming that the combined investigatory efforts of Aruban and

American agents brings the challenged wiretap evidence within the

exclusionary purview of the Fourth Amendment. We are not

convinced.

At its core, Valdivia's argument rests on three factual

propositions: (1) that Special Agent Carpio, an American D.E.A.

agent, was present in Aruba for significant portions of the wiretap

investigation; (2) that Agent Carpio testified at trial concerning

-37-
"our intercept investigation of the [trafficking] organization

. . . in Aruba"; and (3) that the district court acknowledged, in

its order denying Valdivia's Rule 29 motion, that "there is no

doubt that the United States participated in something called

investigation by wiretapping in Aruba."

Putting aside, for the moment, the questionable weight of

these three propositions, we first recount the following panoply of

countervailing facts, which are plainly evident from the record:

Aruban authorities had already initiated the investigation of De

Sousa prior to the arrival of any American law enforcement

personnel; the wiretap was neither requested nor in any way

organized or managed by agents of the United States; the wiretap

orders were sought from and approved exclusively by Aruban courts;

and only Aruban officers actively participated in the

implementation of wiretaps and recording of conversations --

indeed, American agents were permitted neither to enter the

recording room nor listen to the recorded conversations while the

investigation was ongoing. It was only after the investigation had

concluded that Agent Carpio, through official government channels,

requested an authorized copy of the recordings for purposes of

domestic prosecution.

While Carpio did, in fact, characterize the operation as

"our intercept investigation," he later clarified that he did so to

justify his presence in Aruba, which required authorization by his

-38-
administrative superiors at the Drug Enforcement Agency. Moreover,

although Carpio and other agents were present in Aruba during

periods of the wiretap investigation, they were not active

participants in the operation, did not carry guns, badges, or

retain the authority to make arrests, and often worked on other

unrelated cases.13

Thus, as clearly evinced by the record, the involvement,

if any, of American agents in the Aruban wiretap investigation was

minimal, and certainly not sufficient to support an application of

the joint venture exception. Sans the exclusionary hook of the

Fourth Amendment, Valdivia's suppression claim is without merit.

See, e.g., United States v. LaChapelle, 869 F.2d 488, 490-91 (9th

Cir. 1989) (holding that the joint venture exception did not apply

where the foreign official who conducted the foreign investigation

"stated explicitly . . . that American agents were not involved in

initiating or controlling the contested [foreign] wiretap").

F. Sentencing Challenges

We turn, finally, to the appellant's request for

resentencing. At the disposition hearing, the district court found

Valdivia personally responsible for thirty kilograms of heroin,

13
We need not formally address the merits of Valdivia's third
factual proposition. The district court, while acknowledging some
marginal "participation" by American agents, expressly rejected
Valdivia's contention that such participation constituted a
sufficient basis for the application of the joint venture doctrine.
In any event, in light of our de novo review of the issue, the
district court's statement is inapposite.

-39-
resulting in a base offense level (BOL) of 38. See USSG

§ 2D1.1(c)(1). The court then augmented the BOL by two levels,

finding that the appellant had exercised managerial authority over

another participant in the criminal activity. See USSG § 3B1.1(c).

The adjusted offense level of 40, coupled with the absence of any

previous criminal history, yielded an advisory guideline range of

292-365 months. Taking into account the dearth of prior criminal

activity, the avoidance of any violent conduct, and Valdivia's

obvious repentance, the district court applied a significant

downward variance, imposing a total incarcerative term of 210

months.

Valdivia advances two assignments of error. First, he

contends that the district court found him responsible for an

excessive quantity of drugs, arguing that, at most, thirteen

kilograms of heroin are attributable to him on the record, only one

kilogram of which was seized (during Castro's October 2001 arrest).

Second, he posits that the court should not have assigned him a

managerial role where he never actually controlled any of his

cohorts. Such fact-bound procedural claims are reviewed for clear

error. See United States v. Rivera Calderón, 578 F.3d 78, 99 (1st

Cir. 2009); United States v. Santos, 357 F.3d 136, 142 (1st Cir.

2004). Thus, unless, on the entirety of the evidence, we are left

with the definite and firm conviction that a mistake has been

-40-
committed, the sentence must be upheld. Rivera Calderón, 578 F.3d

at 99-100.

We look first at drug quantity, which is an important

factor in establishing a defendant's base offense level. See

United States v. Sepulveda, 15 F.3d 1161, 1196-97 (1st Cir. 1993).

Where, as here, the government asserts that the amount of drugs

seized understates the true scale of the offense, the court must

employ every tool at its disposal to discern a reasonable

approximation of the weight of the controlled substances for which

a particular defendant should be held responsible. United States

v. Eke, 117 F.3d 19, 23 (1st Cir. 1997). In making this

assessment, the court may consider, for example, the price

generally obtained for the controlled substance, financial or other

records, or similar transactions in controlled substances by the

defendant. See USSG § 2D1.1, application note 12. The court may

also rely solely on the testimony of cooperating government

witnesses, provided such testimony exhibits some indicia of

reliability or support from the record. Rivera Calderón, 578 F.3d

at 100; see Eke, 117 F.3d at 24. Ultimately, the sentencing court

need only support a drug quantity determination by a preponderance

of the evidence, and any approximation will be upheld as long as it

represents a reasoned estimate. Santos, 357 F.3d at 141.

The district court, in arriving at its calculation of

thirty kilograms, relied principally on three sources from the

-41-
evidentiary record: (1) the testimony of government witness

Jeffrey Grueninger, De Sousa's closest and perhaps most

knowledgeable associate, who averred in considerable detail that at

least a substantial portion of the 120-125 kilograms of heroin

shipped to Puerto Rico during the relevant time frame was, in fact,

destined for Valdivia;14 (2) the testimony of government witness

Giovani Castro, who corroborated Grueninger's testimony in several

respects, and confirmed that, on more than one occasion, he made

sizable deliveries to Valdivia in Puerto Rico; and (3) recorded

telephone conversations, during which various members of the

criminal enterprise, including Valdivia himself, discussed topics

from which some quantum of drug movement might be surmised. In

light of this evidence, and accounting for the potential puffery of

cooperating witnesses, the court settled on thirty kilograms,

significantly below the amount attributed to Valdivia by the

government.

The appellant condemns the court's reliance on these

sources, characterizing them as uncorroborated and generally

insufficient -- yet he offers no contrary proof, nor does he assail

14
Specifically, Grueninger testified that during the seven-
month cruise ship off-season, Valdivia received roughly six
kilograms of heroin per month, and during the five-month peak
season, he received up to twelve kilograms of heroin per month.
Additionally, he testified that smaller deliveries were made by
traveling couriers like Giovani Castro on a more regular basis,
resulting in a total delivery to Valdivia between October 2001 and
April 2003 of more than one-hundred kilograms of heroin.

-42-
the credibility of either of the cooperating witnesses. To be

sure, our cases require caution in estimating drug quantity, and we

must take special care, where quantity can drastically alter the

severity of a defendant's sentence, to "ensure that [such] findings

are predicated on reliable information." United States v. Rivera-

Maldonado, 194 F.3d 224, 233 (1st Cir. 1999). Ideally, a

successful drug investigation would include the seizure of strong

evidence such as detailed ledgers apportioning quantities to each

criminal participant. Such is rarely the case, however. Under the

present circumstances, given the consistent and mutually

reinforcing testimony of Grueninger and Castro, buttressed by the

content of multiple recorded telephone conversations, the

sentencing court acted within its proper province in finding these

to be reliable sources. Thus, based on the record before us, we

cannot say that the court's quantity estimate was clearly

erroneous.

Valdivia next challenges the district court's

determination that he was an organizer, leader, or manager of the

alleged criminal activity, which resulted in a two-level upward

adjustment. His challenge lacks force.

The relevant sentencing guideline prescribes a two-level

enhancement if the underlying criminal activity involved at least

two, but fewer than five complicit individuals (including the

defendant), and the defendant, "in committing the offense, . . .

-43-
exercised control over, managed, organized, or superintended the

activities of at least one other participant." United States v.

Al-Rikabi, 606 F.3d 11, 14 (1st Cir. 2010); USSG § 3B1.1(c).

The appellant brings a limited claim on appeal,

challenging only the element of control. He asserts that the

sentencing court erroneously based the enhancement on his "control

over the activities of the criminal enterprise rather than over any

participants in it." See United States v. Ramos-Paulino, 488 F.3d

459, 464 (1st Cir. 2007) (emphasis in original). The case law is

indeed unambiguous that the "management of criminal activities,

standing alone, does not constitute a basis for a role-in-the-

offense enhancement under section 3B1.1." Id. Thus, to suggest a

lack of managerial liability, Valdivia paints himself merely as an

organizer of activities, responsible only for arranging deliveries,

sales, and proceed collections. The historical evidence suggests

otherwise.

Various excerpts from the record strongly indicate that

the appellant directed and controlled at least Pabón and Castro,

among others. For example, during several telephone conversations,

Pabón opined that he could not authorize amounts, deliveries, or

other arrangements without the express consent of Valdivia; and

Grueninger, who regularly dealt with both Valdivia and Pabón,

described Pabón as Valdivia's right-hand man. Additionally, on at

least one occasion, Valdivia provided telephone numbers to the

-44-
courier Giovani Castro, with explicit instructions about whom to

contact and when to initiate communications.

So long as the district court's managerial enhancement is

based upon reasonable inferences drawn from adequately supported

facts, we cannot find it to be clearly erroneous. United States v.

Rosado-Sierra, 938 F.2d 1, 2 (1st Cir. 1991). So it is here. The

record more than adequately supports the inference that Valdivia

was not merely an organizer of activities, but a manager of

personnel in the Puerto Rico branch of De Sousa's drug-trafficking

network. Consequently, the district court did not clearly err in

applying the two-level aggravating role adjustment in this case.

We conclude our sentencing discussion by recalling the

not-insignificant fact that the district court adopted a rather

substantial downward variance, to the tune of eighty-two months

below the minimum recommended by the guidelines, and 150 months

below the government's proposal at the disposition hearing. The

sentence was sound, and without more, we discern no basis to

disturb it here.

III. Conclusion

Appellate counsel has identified and ably pressed

numerous claims in this appeal, and has established that the trial

was not perfect. But trials rarely are. The district judge

conscientiously addressed the issues presented to him and insured

that the defendant was tried fairly. Upon conviction by the jury,

-45-
the judge properly applied the sentencing guidelines, considered

the relevant sentencing factors, and ultimately sentenced Mr.

Valdivia to an incarcerative term well below the advisory guideline

range. There were no reversible errors, cumulatively or otherwise.

The conviction and sentence are affirmed.

-46-
 APPENDIX

18 U.S.C. § 3161(h)(1):

"(h) The following periods of delay shall be
excluded in computing the time within which
an information or an indictment must be
filed, or in computing the time within which
the trial of any such offense must commence:

(1) Any period of delay resulting from other
proceedings concerning the defendant,
including but not limited to-

(A) delay resulting from any proceeding,
including any examinations, to determine the
mental competency or physical capacity of the
defendant;

(B) delay resulting from trial with respect
to other charges against the defendant;

(C) delay resulting from any interlocutory
appeal;

(D) delay resulting from any pretrial motion,
from the filing of the motion through the
conclusion of the hearing on, or other prompt
disposition of, such motion;

(E) delay resulting from any proceeding
relating to the transfer of a case or the
removal of any defendant from another
district under the Federal Rules of Criminal
Procedure;

(F) delay resulting from transportation of
any defendant from another district, or to
and from places of examination or
hospitalization, except that any time
consumed in excess of ten days from the date
an order of removal or an order directing
such transportation, and the defendant's
arrival at the destination shall be presumed
to be unreasonable;

(G) delay resulting from consideration by the
court of a proposed plea agreement to be

-47-
entered into by the defendant and the
attorney for the Government; and

(H) delay reasonably attributable to any
period, not to exceed thirty days, during
which any proceeding concerning the defendant
is actually under advisement by the court."

- Concurring Opinion Follows -

-48-
 LIPEZ, Circuit Judge, concurring. Bound by the

precedents of our circuit, my colleagues and I must affirm the

ruling of the trial court that Special Agent Carpio's testimony

about the cell phone practices of drug traffickers was lay opinion

testimony admissible under Rule 701, rather than expert testimony

governed by Rule 702. However, we should reexamine these

precedents in a future en banc proceeding.15

The government elicited the challenged testimony from

Agent Carpio by asking, "[H]ow, if in any way, according to your

experience as a narcotics investigator . . . does a telephone

number registered in the name of a person compare with the practice

of money traffickers of putting their telephone numbers in the

names of third parties?" Carpio responded:

Based on my training and experience, whenever
traffickers utilize cell phones, they try to
disguise names by placing it into somebody
else's name, or there are phone companies that
allow you to give names without any proper
identification. Therefore, masking the real
user of the telephone.

(Emphasis added.) The majority concludes that Carpio's testimony

"fall[s] comfortably within the boundaries of permissible lay

opinion testimony":

It required no scientific or technical
expertise within the scope of Rule 702 for
Carpio to conclude, based on his experience in
prior drug investigations, that traffickers

15
This case is not a good candidate for an en banc proceeding
because any error here was harmless.

-49-
 often list unrelated third parties as their
telephones' subscribers, and that, in this
case, the phone account at issue was organized
under a similar scheme. Such testimony was a
product of Carpio's requisite personal
knowledge, see Fed. R. Evid. 602, and also met
the requirements of Rule 701 because it was
derived from "particularized knowledge that
[Carpio had obtained] by virtue of his . . .
position" as a drug enforcement agent tasked
with investigating the De Sousa narcotics
ring, Fed. R. Evid. 701, Advisory Committee's
note.

(Emphasis added.) The underlined language reflects two flaws in

our circuit's analysis of the difference between lay and expert

opinion testimony. These flaws, discussed in Part II, have put us

at odds with virtually every other circuit16 and the commentary to

16
See United States v. Dukagjini, 326 F.3d 45, 52 (2d Cir.
2002) (approving use of expert testimony about the operations of
drug traffickers and coded language used in drug trafficking);
United States v. Watson, 260 F.3d 301, 307 (3d Cir. 2001)
(affirming admission of expert testimony about the operations of
narcotics dealers, including packaging practices and associated
paraphernalia); United States v. Hopkins, 310 F.3d 145, 150-51 (4th
Cir. 2001) (approving admission of expert testimony about the
methods and materials associated with drug trafficking); United
States v. Cuellar, 478 F.3d 282, 293 (5th Cir. 2007) (acknowledging
"routine" admission of expert testimony about the conduct and
methods of operation unique to drug distribution, including drug
smuggling), rev'd on other grounds, 553 U.S. 550 (2008); United
States v. Johnson, 488 F.3d 690, 698 (6th Cir. 2007) (approving
admission of expert testimony about conduct indicative of drug
transactions); United States v. York, 572 F.3d 415, 420 (7th Cir.
2009) (approving use of expert testimony about coded language);
United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)
(collecting cases regarding use of expert police testimony and
approving use of expert testimony about coded language); United
States v. Valencia-Amezcua, 278 F.3d 901, 908-09 (9th Cir. 2002)
(approving "commonplace" use of expert testimony about structure
and organization of criminal enterprises); United States v. Garcia,
635 F.3d 472, 477 (10th Cir. 2011) (approving admission of expert
testimony about the arms trade and significance of the types of

-50-
Rule 701 of the Advisory Committee on Evidence.

This is not an occasion for examining at length the

incorrectness of our approach to the lay/expert opinion dichotomy

and the unfairness that results for criminal defendants. That

should be done in a future en banc proceeding or in a case where

the dichotomy affects the outcome of the case. Here, I just want

to highlight and explain the problem, beginning with some

background facts, in the hope of eventually changing our law.

I. The 2000 Amendments to the Federal Rules of Evidence

In Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), the Supreme Court addressed the basic requirements for

admitting expert testimony, rejecting what was then the framework

for deciding whether expert testimony was admissible — the

so-called Frye test of general acceptance in the particular field.

See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The

Daubert Court held that the adoption of Rule 702 had rendered the

Frye test obsolete.17 Daubert, 509 U.S. at 588-89. Because the

drafters did not cite Frye or use its "general acceptance"

language, the Court concluded that they did not intend to adopt its

firearms purchased); United States v. Sarcona, No. 10-10992, 2012
U.S. App. LEXIS 233, at *24-25 (11th Cir. Jan. 6, 2012) (approving
use of expert testimony about concealment practices of criminals,
including the mechanics of money laundering); United States v.
Wilson, 605 F.3d 985, 1025-26 (D.C. Cir. 2010) (approving use of
expert testimony about coded language).
17
The Federal Rules of Evidence, including Rule 702, were
enacted in 1975.

-51-
test for admissibility. Id. The Court found that the Frye

standard was "absent from, and incompatible with, the Federal Rules

of Evidence" and "should not be applied in federal trials." Id. at

589.

The Daubert Court emphasized that "under the Rules the

trial judge must ensure that any and all scientific testimony or

evidence admitted is not only relevant, but reliable." Id. at 589.

It found that Rule 702 contained implicit safeguards for

reliability, based on the drafters' use of the terms "scientific"

and "knowledge." These two terms, the Court found, require a

certain level of reliability from all expert testimony. Id. at

590. The Court set out five non-exclusive factors for trial courts

to consider when determining whether such testimony meets the

implicit reliability requirements of Rule 702: (1) whether the

expert's technique or theory can be or has been tested; (2) whether

the technique or theory has been subject to peer review and

publication; (3) what the known or potential rate of error of the

technique or theory is when applied; (4) whether the expert

maintained standards or controls; and (5) whether the technique or

theory has been generally accepted in the scientific community.

Id. at 593-95. Subsequently, in its 1999 decision in Kumho Tire

Co. v. Carmichael, the Court stated that trial courts should apply

a Daubert-style analysis to all expert testimony, not just

testimony based explicitly on science. 526 U.S. 137, 149 (1999).

-52-
 Rule 70218 was then amended in 2000 to incorporate the

inquiry trial courts must undertake pursuant to Daubert and Kumho

and thereby enhance the reliability of expert testimony. At that

time, the rule drafters were aware of a federal case law trend in

the 1980s that blurred the distinction between lay opinion

testimony and expert testimony. Increasingly, lay witnesses were

permitted to offer opinions on matters that required at least some

amount of specialized knowledge or experience. See, e.g., United

States v. Paiva, 892 F.2d 148 (1st Cir. 1989) (finding no abuse of

discretion where lay witness identified a substance as cocaine

based on past experience with the taste and appearance of the

substance); Soden v. Freightliner Corp., 714 F.2d 498 (5th Cir.

1983) (allowing lay witness opinion testimony that a certain truck

design was dangerous and defective based on witness's 18 years of

experience in the trucking industry). The drafters realized that

18
Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts
or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.

-53-
this jurisprudence allowing more and more opinion testimony under

Rule 70119 threatened to undermine the safeguards set forth in Rule

702 to enhance the reliability of expert testimony. If lay

witnesses could offer the same types of opinion testimony as

experts, there would be a significant incentive for attorneys to

circumvent the rigorous Daubert framework incorporated in Rule 702

and bring opinion testimony in under Rule 701. Hence, the drafters

added a provision to Rule 701, now codified as Rule 701(c), stating

that lay opinion testimony is inadmissible if it is "based on

scientific, technical or other specialized knowledge within the

scope of Rule 702." The Advisory Committee explained that the

purpose of this amendment was to "eliminate the risk that the

reliability requirement set forth in Rule 702 will be evaded

through the simple expedient of proffering an expert in lay witness

clothing." Fed. R. Evid. 701 advisory committee's notes.

19
Federal Rule of Evidence 701 states:

If a witness is not testifying as an expert, testimony in
the form of an opinion is limited to one that is:
(a) rationally based on the witness's
perception;
(b) helpful to clearly understanding the
witness's testimony or to determining a fact
in issue; and
(c) not based on scientific, technical, or
other specialized knowledge within the scope
of Rule 702.

-54-
II. Our Circuit's Interpretation of the 2000 Amendments

Regrettably, our precedents have abetted the very risk

that the Advisory Committee sought to avoid. That is so because we

have misunderstood the significance of language from the Rules and

the Advisory Committee's notes in at least two ways. First, we

have classified officer testimony based on law enforcement

experience as lay opinion testimony because officers base such

testimony on knowledge "personally acquire[d] through experience,

often on the job." United States v. Maher, 454 F.3d 13, 23 (1st

Cir. 2006). Such testimony, however, is precisely the sort of

testimony based on "knowledge, skill, experience, training, or

education" contemplated by Rule 702. Fed. R. Evid. 702 (emphasis

added).

Second, we have misread language from the Advisory

Committee's notes. The notes describe business owners providing

lay testimony about "the value or projected profits of the

business, . . . not because of experience, training or specialized

knowledge within the realm of an expert, but because of the

particularized knowledge that the witness has by virtue of his or

her position in the business." Fed. R. Evid. 701 advisory

committee's notes. We have ignored the limiting language of the

Advisory Committee's notes and applied the "by virtue of his or her

position" language to generalized police testimony about, for

example, the regular practices of drug traffickers. See United

-55-
States v. Ayala-Pizarro, 407 F.3d 25, 28-29 (1st Cir. 2005)

(classifying general testimony about how drug operations work as

lay testimony "because it was based on 'particularized knowledge

that the witness [had] by virtue of his . . . position' as a police

officer assigned to patrol the neighborhood" (emphasis added)

(quoting Fed. R. Evid. 701 advisory committee's notes)).20

The Seventh Circuit ably described the flaws in our

analysis when it rejected our interpretation of Rules 701 and 702

in United States v. Oriedo, 498 F.3d 593, 603 n.10 (7th Cir. 2007):

The Government urges this court to
adopt the contrary approach outlined by the
First Circuit in United States v.
Ayala-Pizarro, 407 F.3d 25, 28-29 (1st Cir.
2005), cert. denied, 546 U.S. 902 (2005). The
court held that, where an officer's testimony
as to narcotics packaging was based on his
personal knowledge acquired from experience in
investigating drug trafficking, it was not
technical or specialized within the meaning of
Rule 701's limitations, but was simply
particularized lay testimony. We are not
persuaded by the reasoning employed in this
case.

First, we note that the Advisory
Committee Notes to Rule 701 themselves cite
with approval United States v. Figueroa-Lopez,
125 F.3d 1241, 1246 (9th Cir. 1997), for the
proposition that law enforcement testimony
that particular conduct is consistent with
drug trafficking should be viewed as expert
testimony within Rule 702, because to view it
as lay testimony "subverts" the disclosure
requirements for expert testimony. Fed. R.

20
I have contributed to our misguided analysis on these
lay/expert opinion testimony issues in a number of cases, including
as a member of the panel in Ayala-Pizarro.

-56-
 Evid. 701 (Advisory Committee's Note). We
also conclude that Ayala-Pizarro confuses the
Note's reference to the kind of
"particularized knowledge" that a lay person
may have of the value of their own business
with the kind of "specialized knowledge" that
brings testimony within Rule 702. The
business owner has knowledge of his own
business in the particular; a narcotics
officer who draws on his broad experience,
acquired from his observations outside of this
particular case, relies on his specialized
knowledge of drug trafficking to draw
conclusions about the particular case.
Finally, under the First Circuit's reading of
the Rules in Ayala-Pizarro, a substantial
argument could be made that anyone who
acquires broad knowledge of a topic through
direct experience would qualify as a lay
witness; Rule 702 itself, however,
specifically defines a witness' qualification
as an expert to arise because of "knowledge,
skill, experience, training or education."
Fed. R. Evid. 702 (emphasis added).

As the Seventh Circuit has aptly noted, the explicit

language of Rule 702 sets forth a bright line rule. If a witness

has acquired "specialized knowledge" on the basis of "knowledge,

skill, experience, training or education," and presents that

knowledge to a jury "in the form of an opinion or otherwise," that

witness is testifying as an expert witness, Fed. R. Evid. 702, who

is subject to the disclosure requirements for expert testimony.21

In the absence of such disclosure, opposing counsel are denied an

21
Before trial, a party must disclose the identity of any
expert witness it may use at trial. That disclosure must include,
among other things, the subject matter on which the witness is
expected to testify and a summary of the facts and opinions to
which the witness is expected to testify. Fed. R. Civ. P. 26(2);
Fed. R. Crim. P. 16(a)(1)(G), (b)(1)(C).

-57-
opportunity to secure their own experts or immerse themselves in

the area of expertise and develop a meaningful cross-examination.

The result may be the presentation of expert testimony by a lay

witness whose reliability is not meaningfully tested.

In this case, as noted, the government asked Agent Carpio

"[H]ow, if in any way, according to your experience as a narcotics

investigator . . . does a telephone number registered in the name

of a person compare with the practice of money traffickers of

putting their telephone numbers in the names of third parties?"

This question asked him to give his opinion on whether the

particular conduct of the defendant in this case was consistent

with drug trafficking generally. To answer this question, he drew

on specialized knowledge that he acquired from years of experience

investigating drug cases:

Based on my training and experience, whenever
traffickers utilize cell phones, they try to
disguise names by placing it into somebody
else's name, or there are phone companies that
allow you to give names without any proper
identification. Therefore, masking the real
user of the telephone.

Such testimony falls squarely within the characterization of expert

testimony in Rule 702. In so far as I can tell, no other circuit

would conclude otherwise.22

22
I acknowledge that the analysis in this case is complicated
by the fact that the challenged testimony arguably arose because of
the nature of defense counsel's cross-examination of Agent Carpio,
which the government could not anticipate. It is not necessary to
determine the effect of that complication in this case. The

-58-
 We have complained in prior cases that the line between

expert testimony under Rule 702 and lay testimony under Rule 701

is, in practice, "not [an] easy [one] to draw." United States v.

Colón Osorio, 360 F.3d 48, 52-53 (1st Cir. 2004); see also United

States v. Hilario-Hilario, 529 F.3d 65, 72 (1st Cir. 2008) ("There

is no bright-line rule to separate lay opinion from expert witness

testimony."). This is a difficulty of our own making. Instead of

focusing on the purpose of the question being asked (is the

particular conduct in this case consistent with drug trafficking

generally), and the basis for the witness's answer (training and

experience), we make the problematic judgment that the majority

makes in this case ("It required no scientific or technical

expertise within the scope of Rule 702 for Carpio to conclude,

based on his experience in prior drug investigations, that

traffickers often list unrelated third parties as their telephones'

subscribers, and that, in this case, the phone account at issue was

organized under a similar scheme.")

I understand the appeal of this judgement. At the core

of Carpio's testimony is the seemingly common sense notion that

drug traffickers try to conceal their conduct. Why do we need a

battle of experts, or carefully prepared cross-examination, to test

significant point is that if Agent Carpio's testimony had been
elicited through direct examination, it should have been subject to
the requirements placed on expert testimony. Under our precedent,
it would not be.

-59-
for jurors the reliability of such testimony? The answer is that

the simplicity of Carpio's testimony is deceptive. The issue is

not the impulse of traffickers to conceal their conduct, but rather

the specific practices they use to do so. Perhaps many

traffickers, instead of using registered phones, use disposable

phones, which do not require the use of anyone's name. Perhaps

phone companies are not as willing as Carpio suggests to allow

registration without proper identification. These possibilities

involve specialized knowledge that lawyers do not usually possess.

They involve knowledge beyond the experience of most jurors.

Hence, we should be wary of making the qualitative judgment that

the opinion testimony of police officers that otherwise meets the

requirements of Rule 702 is so simple or obvious that we can treat

it as lay opinion testimony under Rule 701. Our readiness to make

these judgments has created the hazy line that we complain about.

It has created in some of our precedents an unwarranted police

exception from the requirements applicable to expert testimony.

We need to rethink these precedents. We need to apply

the bright line rule that the language of Rule 702 provides in

deciding whether a police officer is testifying as a fact witness

or an expert witness. If the officer is being asked to draw on

specialized knowledge acquired through experience and training to

offer an opinion on the inculpatory significance of the particular

conduct of the defendant, that officer is testifying as an expert

-60-
witness. I recognize that such application of the rule may add to

the burden of a prosecution that has to comply with the disclosure

requirements applicable to expert witnesses. See Fed. R. Civ. P.

26(2); Fed. R. Crim. P. 16(a)(1)(G), (b)(1)(C). The prosecution

will have to think through in advance of trial exactly how police

witnesses will be used at trial. But these burdens do not deny the

prosecution the use of any testimony that they deem essential to

their cases. At the same time, these burdens increase the

likelihood that defense counsel will be able to fairly test the

reliability of the opinion testimony of police officers who draw on

their experience and training to characterize the particular

conduct of the defendant as classic criminal conduct. That is how

the system should work.

-61-