United States v. Arias

United States Court of Appeals
For the First Circuit

No. 15-1946

UNITED STATES OF AMERICA,

Appellee,

v.

SENNY ARIAS,

Defendant, Appellant.

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

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Lynch, Lipez, and Barron,
Circuit Judges.

Paul J. Garrity was on brief for appellant.
Demetra Lambros, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Carmen M. Ortiz, United States
Attorney, and Theodore B. Heinrich, Assistant United States
Attorney, were on brief, for appellee.

February 17, 2017
 BARRON, Circuit Judge. Senny Arias appeals his

convictions and sentence for possession of heroin with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy

to distribute heroin, in violation of 21 U.S.C. § 846. We affirm.

I.

The charges brought against Arias stem from an

investigation that began in 2012 of Jason Melchionda. Melchionda

was the suspected head of a drug-trafficking organization

operating on Massachusetts' North Shore.1 Pursuant to a warrant,

law enforcement officers serving on a task force for the United

States Drug Enforcement Agency ("DEA") tapped the phones of

Melchionda and several of his associates. From those

conversations, the officers learned that someone named "Sarnie"

was supplying large quantities of heroin to Melchionda. The

officers thus began to surveil the movements of Melchionda.

On July 2, 2013, officers on the task force observed the

person that they believed to be "Sarnie" participate in a drug

transaction and then drive away in a Nissan Murano. The Murano

was titled to Luis Rodriguez. Based on this information, Detective

David Gecoya, a Saugus, Massachusetts Police Department officer

1Because Arias does not contest the sufficiency of the
evidence presented against him, we narrate the facts in a "balanced
way, without favoring either side." United States v. Rodríguez–
Soler, 773 F.3d 289, 290 (1st Cir. 2014) (stating that the
"balanced-presentation approach" is an acceptable option where the
sufficiency of the evidence is not challenged).

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who had been deputized to the DEA task force, sought a warrant to

attach a Global Positioning System ("GPS") tracker to the Murano.

Gecoya stated in the warrant affidavit -- wrongly, as it turned

out -- that "Sarnie" is an alias for Rodriguez.

A little more than two weeks later, on July 11, 2013,

Arias appeared at the police station in Saugus. He was there to

bail out Bryan Gonzalez -- who is apparently known as "Chicken

Legs" -- after Gonzalez had been arrested for driving the Murano

without a license. Arias then left the station and went to a

towing company to retrieve the Murano.

Arias provided a driver's license to the towing company,

which turned over a photocopy of that license to Detective Gecoya.

Detective Gecoya identified the person depicted in the license as

a person who had been surveilled during the course of the

investigation of Melchionda. Then, on July 23, 2013, Detective

Gecoya observed another drug transaction involving "Sarnie"

driving the Murano and identified the participant as the same

person depicted in the license that Gecoya had been given by the

towing company -- that is, Arias.

On July 24, Detective Sean Moynihan, an officer with the

Saugus Police Department, pulled over the Murano at the request of

Detective Gecoya. Detective Moynihan identified the driver as

Arias. About two weeks later, on August 6, Officer Cabral, another

officer with the Saugus Police Department, made a similar short

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stop of the Murano, also at Detective Gecoya's direction. Officer

Cabral identified the driver as, once again, Arias.

Detective Gecoya arrested Arias on August 15. At the

time of his arrest, Arias had 77 bags of heroin -- totaling 22.4

grams -- on his person. Additional heroin was recovered in Arias's

apartment. Later that day, Arias had an initial appearance and

was remanded to the authority of the United States Marshals

Service.

On September 12, 2013, Arias was indicted on two federal

criminal counts: conspiracy to possess with intent to distribute

and to distribute heroin, in violation of 21 U.S.C. § 846; and

possession with intent to distribute heroin, in violation of 21

U.S.C. § 841(a)(1). The indictment also contained an order of

forfeiture of any property used to facilitate the commission of

the crimes, under 21 U.S.C. § 853.

The trial occurred in May of 2015. The jury convicted

Arias on both counts. At sentencing, the District Court concluded

that Arias was responsible for the possession and sale of over 400

grams of heroin, but less than 700 grams. On that basis, the

District Court determined Arias's base-offense level under the

United States Sentencing Guidelines to be 26. The District Court

also determined that Arias's criminal history category was I. The

District Court thus calculated Arias's guidelines sentencing range

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to be 63 to 78 months' imprisonment. The District Court then

sentenced Arias to a term of imprisonment of 66 months.

Arias now raises a number of challenges to his

convictions based on errors that he contends occurred both before

and during the trial. He also challenges his sentence. We

consider each claim of error in turn, starting with the ones that

concern the rulings that the District Court made before the trial

began.

II.

Arias contends that the District Court erred in four

respects prior to the start of the trial, and that each of these

erroneous pre-trial rulings requires the reversal of his

convictions. He first argues that the District Court erred in

denying his motion for what is known as a Franks hearing, under

Franks v. Delaware, 438 U.S. 154 (1978), to determine whether the

affidavit that Detective Gecoya filed in support of the warrant to

place the GPS tracking device on the Murano contained a false

statement that he made in reckless disregard of the truth. Arias

next contends that the District Court erred in denying a motion to

suppress evidence stemming from the two traffic stops of the

Murano, while Arias was driving it, because Arias contends that

the officers lacked the reasonable suspicion of criminal activity

that the Fourth Amendment requires in order for the stops to have

been lawful. Third, Arias contends that the District Court erred

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by not granting his attorney leave to file a suppression motion

after the passing of the deadline that the District Court had set

for the filing of suppression motions. Finally, Arias argues that

the District Court erred by refusing to grant his attorney's

request, made shortly before the trial began, for a continuance.

A.

We start with the first of the four pre-trial rulings

that Arias challenges: the District Court's denial of Arias's

motion for a Franks hearing to "test the veracity of" Detective

Gecoya's affidavit in applying for the warrant to place the GPS

tracker on the Murano. United States v. Tanguay, 787 F.3d 44, 48

(1st Cir. 2015) (citing Franks, 438 U.S. at 155-56).2 If a

defendant, by a preponderance of the evidence, shows at a Franks

hearing that an affidavit in a warrant application contains false

statements or omissions, made intentionally or with reckless

disregard for the truth, and that a finding of probable cause would

not have been made without those false statements or omissions,

2 On April 6, 2015, Arias filed a pre-trial motion to suppress
the evidence from the GPS tracking unit on the Murano on the ground
that the warrant application filed by Detective Gecoya to place
that device on that car relied on an affidavit by Gecoya that
included a false statement (the identification of Rodriguez) made
with reckless disregard for the truth. At a colloquy with the
defense counsel concerning this motion, the District Court
interpreted this motion to be a motion for a Franks hearing and
then denied it. It is the denial of the motion -- as so
characterized -- that Arias appeals.

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then the defendant is entitled to the suppression of evidence

obtained under that warrant. Id. at 49.

A defendant is entitled to a Franks hearing, however,

only if he first makes a "substantial preliminary showing" of the

same two requirements that he must meet at the hearing -- that "a

false statement or omission in the affidavit was made knowingly

and intentionally or with reckless disregard for the truth" and

that the false statement or omission was "necessary to the finding

of probable cause." United States v. McLellan, 792 F.3d 200, 208

(1st Cir. 2015) (quoting United States v. Rigaud, 684 F.3d 169,

173 (1st Cir. 2012)). In considering a district court's decision

to deny a Franks hearing, we review factual determinations for

clear error and the probable cause determination de novo. Tanguay,

787 F.3d at 49-50. Applying these standards, we find no error in

the District Court's determination that Arias did not make the

necessary preliminary showing as to the first requirement -- that

the false statement was made knowingly and intentionally or with

reckless disregard for the truth.

Arias bases his challenge to the denial of his request

for a Franks hearing on the false statement in the affidavit that

identifies Rodriguez as "Sarnie," the driver of the Murano, a

vehicle that was surveilled at the scene of a drug transaction.

In fact, "Sarnie" was Arias and not Rodriguez, and the person

driving the car at that time was Bryan Gonzalez, otherwise known

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as "Chicken Legs." The false statement thus had the effect of

equating -- wrongly -- Rodriguez and "Sarnie" and thereby using

Rodriguez to tie the Murano to "Sarnie's" suspected drug

trafficking.

Arias contends Detective Gecoya made this false

statement with reckless disregard for the truth. "Recklessness

may be inferred 'from circumstances evincing obvious reasons to

doubt the veracity of the allegations.'" United States v. Ranney,

298 F.3d 74, 78 (1st Cir. 2002) (quoting United States v. Williams,

737 F.2d 594, 602 (7th Cir. 1984)). Arias argues that the

affidavit itself reveals obvious reasons to doubt the veracity of

the identification of the driver of the Murano as Rodriguez. The

affidavit describes a series of phone calls and text messages

between Melchionda and the user of "Target Telephone #5," who was

referred to in the phone calls as "Sarnie," arranging a meeting

for a drug transaction. Arias contends that the description of

the recorded communications in the affidavit indicates that the

user of Target Telephone #5 would be sending someone else to the

transaction, rather than going himself.

The District Court reasonably determined, however, that

Gecoya's "apparent surmise that the registered owner of the vehicle

[Rodriguez] was the driver was not inherently implausible." While

the affidavit notes that the user of Target Telephone #5 stated

that he planned to call Melchionda to set up a time for the

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transaction after he met with Chicken Legs and after Chicken Legs

left, the affidavit does not indicate that Chicken Legs, rather

than the user of Target Telephone #5, would be going to the

transaction. The record instead reveals a series of increasingly

detailed phone calls between the user of Target Telephone #5 and

Melchionda regarding the time and place for the transaction. The

record in this respect supports the inference that the user himself

was going to the transaction. Because "'[m]ere inaccuracies, even

negligent ones, are not enough' to warrant a Franks hearing,"

United States v. Santana, 342 F.3d 60, 66 (1st Cir. 2003) (quoting

United States v. Adams, 305 F.3d 30, 36 n.1 (1st Cir. 2002)

(alteration in original)), we see no basis for finding error in

the District Court's ruling denying the motion for a Franks

hearing.

B.

We now take up Arias's challenge to the District Court's

denial of Arias's motion to suppress testimony related to the two

traffic stops of the Murano, on July 24, 2013 and August 6, 2013.

The parties agree that, under the Fourth Amendment, a short

investigative vehicle stop requires that the officers executing

the stop have "reasonable suspicion to believe that criminal

activity 'may be afoot.'" United States v. Wright, 582 F.3d 199,

205 (1st Cir. 2009) (quoting United States v. Arvizu, 534 U.S.

266, 273 (2002)). A finding of reasonable suspicion must be

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"grounded in specific and articulable facts." Id. (quoting United

States v. Espinoza, 490 F.3d 41, 47 (1st Cir. 2007)). These facts

must amount to "more than a mere hunch but less than probable

cause." Id. (quoting United States v. Ruidíaz, 529 F.3d 25, 29

(1st Cir. 2008)).

In his motion to suppress, Arias contended that the

officers who made the stops, directed by Detective Gecoya, did not

on either of the occasions at issue have reasonable suspicion to

pull over Arias while he was driving the Murano. The District

Court held an evidentiary hearing on the matter and ruled against

Arias. In reviewing a challenge to a district court's denial of

a suppression motion, "we review the district court's findings of

fact and credibility determinations for clear error. . . . However,

we review de novo the district court's conclusions of law,

including its application of the law to the facts." United States

v. Camacho, 661 F.3d 718, 723-24 (1st Cir. 2011) (citation

omitted).

We start by noting that it is undisputed that Detective

Moynihan and Officer Cabral executed the stops at the direction of

Detective Gecoya. Thus, if Gecoya had the requisite reasonable

suspicion, it may be imputed to the officers executing the stop.

See United States v. Barnes, 506 F.3d 58, 63 (1st Cir. 2007)

("[R]easonable suspicion can be imputed to the officer conducting

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a search if he acts in accordance with the direction of another

officer who has reasonable suspicion.").

As to the traffic stop on July 24, Arias concedes that

Detective Gecoya may have had reasonable suspicion that the Murano

was involved in criminal activity. Arias nonetheless contends

that Detective Gecoya did not have the reasonable suspicion that

was required -- "reasonable suspicion of Mr. Arias being involved

with criminal activity." We do not agree, even if we were to

assume that Detective Gecoya's reasonable suspicion that the car

was involved in criminal activity would be insufficient to support

a brief stop of the car.

The record shows that, on June 11 and June 12, Gecoya

observed a person driving the Murano in the course of participating

in what Gecoya believed to be, on the basis of wiretaps, drug

transactions with another target of the investigation. And, on

July 11, Gecoya determined, based on the driver's license provided

to him by the towing company, that the person whom task force

members had observed driving the Murano on June 11 and June 12

was, in fact, Senny Arias. Gecoya then observed Arias on July 23

behind the wheel of the Murano at a McDonald's and acting in a

manner consistent with his participation in a drug transaction.

These facts suffice to support a particularized and objective basis

for Gecoya's suspicion both that Arias was involved in criminal

activity and that he was driving the Murano at the time of the

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stop. See United States v. Arnott, 758 F.3d 40, 44 (1st Cir. 2014)

(finding that extended monitoring of a suspect, with surveillance

and recorded phone calls, that reveals a pattern consistent with

repeated drug deals provides reasonable suspicion for a traffic

stop).

As to the traffic stop on August 6, the District Court's

ruling is also clearly right. Gecoya by then had all the

information that he had at the time of the July 24 stop. But he

also had more. Surveillance of the Murano undertaken on August 6,

but prior to the stop, revealed a pattern of behavior consistent

with further drug deals. Gecoya thus also had reasonable suspicion

to request the stop on August 6.

C.

Next, Arias contends that the District Court erred in

denying his motion for leave to file a motion to suppress wiretap

evidence. The District Court based that ruling on its

determination that the motion was filed after the deadline that

the District Court had set for the filing of suppression motions.

We review the denial of a motion for leave to file a

motion after a deadline for abuse of discretion. United States v.

Santos Batista, 239 F.3d 16, 20 (1st Cir. 2001). A district court

should, under Rule 12 of the Federal Rules of Criminal Procedure,

grant leave to file an untimely motion "for cause," which we have

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interpreted to mean "where there is a showing of cause and

prejudice." Id. at 19.3

The issue arises in the following way. Initially, Edward

Lee was appointed as Arias's attorney, but on February 13, 2015,

Lee withdrew and Eric Tennen was appointed as Arias's new attorney.

On February 24, the District Court set out a pretrial schedule

that required that suppression motions be filed by March 17, 2015.

The District Court then extended that deadline on March 17 to April

6.

On April 6, Arias filed the two suppression motions that

we have already discussed, the first of which concerned the

evidence acquired from the GPS tracking device and the second of

which concerned the evidence acquired from the two vehicle stops.

But, then, on April 30, Arias filed a motion for leave to file a

third motion to suppress -- this one targeting the wiretap

evidence. In that motion, Tennen stated that the basis for this

suppression motion had not become clear to him until April 25,

when Arias and Tennen met and discussed the wiretap evidence. At

3 In Santos Batista, we cited to Rule 12(f) as the standard
that a district court applies in granting leave to file untimely
motions to suppress. After that case, the language in Rule 12(f)
was moved to Rule 12(e), and then to Rule 12(c)(3). However, the
standard remains the same. See Fed. R. Crim. P. 12 advisory
committee's notes to 2014 amendments ("New paragraph 12(c)(3)
retains the existing standard for untimely claims. The party
seeking relief must show 'good cause' for failure to raise a claim
by the deadline, a flexible standard that requires consideration
of all interests in the particular case.").

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a hearing on May 6, the District Court denied this third

suppression motion because it had been filed more than two weeks

after the previously imposed deadline for making such a filing.

Arias at no point indicated to the District Court what

the grounds for this third motion were. Nor does he describe those

grounds on appeal. Arias thus does not show any prejudice from

its denial. He therefore cannot show that the District Court

abused its discretion in enforcing the deadline that it had set.

See United States v. Williams, 630 F.3d 44, 49 (1st Cir. 2010)

("[S]peculation about what assistance [a document not in the

record] might have rendered to his defense falls hopelessly short

of establishing, as he must, a likelihood of prejudice.").

D.

The last of Arias's challenges to the District Court's

pre-trial rulings concerns the District Court's denial of Arias's

motion for a continuance of the trial just prior to the trial's

start. We set forth the relevant facts in brief.

Trial was set to begin on March 2, 2015. On February

17, Tennen, who we have noted was appointed as Arias's second

attorney on February 13, 2015, filed Arias's motion to continue

the trial, to which the government assented. In an affidavit

attached to that motion, Tennen stated that he was scheduled to be

in trial on a separate matter from February 18, 2015, until March

13, 2015. The District Court continued the trial until May 21,

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2015. On May 4, however, Tennen filed an unopposed motion by Arias

to continue the trial again, this time requesting a start date of

June 30, 2015. It is the denial of this second motion to continue

the trial that is at issue on appeal.

In the affidavit accompanying the second motion for a

continuance, Tennen stated that, in a conversation with Arias on

April 25, 2015, Tennen learned information that provided the basis

for him to file a motion to suppress the evidence obtained from

the wiretap and that he needed the extra time to prepare that

motion. Tennen also stated that he had been unable to prepare

adequately for trial due to the large volume of discovery involved,

the time that he had to spend to prepare the two suppression

motions that he had already filed, and his other obligations.

We review a denial of a motion for a continuance of trial

for abuse of discretion. United States v. Rosario-Otero, 731 F.3d

14, 18 (1st Cir. 2013) (citing United States v. Fink, 499 F.3d 81,

89 (1st Cir. 2007)). In reviewing such a decision, we consider a

number of factors, including "the likelihood of injustice or unfair

prejudice resulting from the denial of a continuance." United

States v. Delgado-Marrero, 744 F.3d 167, 196 (1st Cir. 2014). "We

consider this final factor to be essential, overturning the denial

of a continuance only when the movant identifies specific, concrete

ways in which the denial resulted in 'substantial prejudice' to

his or her defense." Id. (citations omitted).

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 Arias fails to support his challenge with an adequate

showing of prejudice. He argues first that, if the District Court

had continued trial, then Tennen would have filed a motion to

suppress evidence from the wiretap before the deadline. But, as

we have already noted, Arias does not now explain to us what the

basis for that motion would have been and thus how his claimed

inability to prepare it prejudiced him.

Arias also contends that, if the District Court had

granted the continuance, Tennen would have prevented the jury from

hearing evidence that the District Court later instructed the jury

to disregard. That evidence was the testimony by Sergeant James

Picardi, an officer with the Revere, Massachusetts Police

Department, that the phone that Arias was carrying on his person

at the time he was arrested had a particular phone number that had

been tapped by the government in the course of its investigation

of Melchionda.

The problem for Arias is that the District Court did

ultimately exclude the evidence. Moreover, in doing so, the

District Court issued a curative instruction to the jury to

disregard it. As a general matter, "appellate courts inquiring

into the effectiveness of a trial judge's curative instructions

should start with a presumption that jurors will follow a direct

instruction to disregard matters improvidently brought before

them." United States v. Sepúlveda, 15 F.3d 1161, 1185 (1st Cir.

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1993). Arias makes no showing, however, that rebuts that

presumption. Thus, even if we were to assume that the ultimately

stricken testimony might not have been heard by the jury at all if

Arias's attorney had more time to prepare the case, Arias has not

shown how the denial of the motion to continue the trial prejudiced

him.

Finally, Arias claims prejudice by pointing to a police

report that was introduced into evidence at trial and that Arias

contends contained exculpatory evidence regarding the weight of

the drugs recovered in an apartment in which he lived. Arias

acknowledges that Tennen, his attorney, was able to rely on this

report in cross-examining a witness that the government called at

trial about the weight of the drugs recovered. Arias contends

that if the continuance had been granted, Tennen would have been

able to identify the discrepancy in time to cross-examine the

witness regarding the police report immediately after the direct

examination, rather than only on recall. Arias does not explain,

however, how the fact that Tennen could examine the witness only

on recall prejudiced him. Thus, Arias does not show the prejudice

that he is required to show in order to prevail in his challenge

to the District Court's decision to deny the motion to continue

the trial.

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 III.

Having addressed each of Arias's claims of pre-trial

error, we now turn to his contention that the District Court made

erroneous rulings at trial as well, and that these errors also

require his convictions to be reversed. In particular, Arias

contends that the District Court erred in admitting evidence

related to a phone call in which Melchionda stated that he received

regular deliveries of heroin from Arias, and that the District

Court erred in denying Arias's motion for a mistrial. We find no

error on either count.

A.

Prior to trial, Arias moved to exclude a statement made

on a recording of a phone conversation between Melchionda and an

unidentified person on the ground that the statement was

inadmissible hearsay. The government contended that, under

Federal Rule of Evidence 801(d)(2)(E), the statement was not

inadmissible because it was made by a co-conspirator, Melchionda,

in furtherance of the drug trafficking conspiracy. Arias argued

that the statement was not made in furtherance of the conspiracy.

In order to admit a statement under Rule 801(d)(2)(E),

a district court must conclude, by a preponderance of the evidence,

that the "declarant and the defendant were members of the same

conspiracy and that the statement was made in furtherance of the

conspiracy." United States v. Paz-Alvarez, 799 F.3d 12, 29 (1st

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Cir. 2015). Here, the statement at issue was the one that

Melchionda made to the unidentified person that Melchionda gets

"40 bags from Senny every other day." That statement was made

during a conversation in which Melchionda and the unidentified

person discussed the pricing, supplying, and selling of heroin.

The District Court concluded that the statement was made in

furtherance of the conspiracy, stating that, "like any other

business, people engaged in this business, it is helpful to them,

it furthers their business to understand what others in competing

businesses are doing. Again, like a Ford dealer sharing notes

with a Chevy dealer or perhaps two Ford dealers sharing notes, I

do think it furthers the conspiracy."

We review a District Court's decision to admit a

statement under Rule 801(d)(2)(E) either for clear error, see Paz-

Alvarez, 799 F.3d at 29, or for an abuse of discretion, see United

States v. Colón-Díaz, 521 F.3d 29, 36 (1st Cir. 2008). We need

not determine which standard applies because, even under the more

defendant-friendly standard -- abuse of discretion -- the

challenge fails.

Arias argues that Melchionda did not make the statement

in furtherance of the conspiracy, because "[t]here was nothing in

the call which indicated . . . that Melchionda was attempting to

do business with [the unidentified caller]," and the call reflected

merely "friends in the same business making idle conversation."

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But we have made clear that "a statement need not be necessary or

even important to the conspiracy . . . as long as it can be said

to advance the goals of the conspiracy in some way." United States

v. Martínez-Medina, 279 F.3d 105, 117 (1st Cir. 2002). And here,

the District Court reasonably concluded that, in the recorded phone

conversation, Melchionda traded information about the drugs that

he received from Arias for information from an associate who was

also in the heroin business and that this information would help

Melchionda in running the heroin trafficking business that was the

subject of the indictment. Thus, it was reasonable for the

District Court to conclude that the statement regarding Arias was

made in furtherance of the conspiracy.

B.

Next, Arias contends that the District Court erred in

failing to declare a mistrial after the jury was improperly exposed

to evidence regarding the phone number of the phone that was on

Arias's person when he was arrested. That phone number is

significant because it connected Arias to multiple recorded phone

calls in which drug transactions were discussed.

"When reviewing the denial of a motion for a mistrial,

we consider the totality of the circumstances to determine whether

the defendant has demonstrated the kind of clear prejudice that

would render the court's denial of his motion for a mistrial a

manifest abuse of discretion." United States v. Pagán-Ferrer, 736

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F.3d 573, 586 (1st Cir. 2013) (citation omitted). In determining

whether a District Court abused its discretion in denying a motion

for a mistrial, we look at three factors: "1) whether an

appropriate curative instruction was issued, 2) whether the

judicial response was timely, and 3) whether appellants

successfully rebutted the presumption that the jury followed the

judge's instructions." Id.

The District Court determined that the jury had been

improperly exposed to evidence regarding the phone number. The

District Court made that determination because, after the evidence

was introduced, it came to light that the government's warrant

application for the search of the phone to determine its phone

number had failed to disclose that the government had already

executed the search prior to filing the warrant application.

Nonetheless, the District Court gave a curative instruction, which

directed the jury to disregard the exhibits and the testimony that

indicated what the actual number of the phone was. Thus, Arias's

contention that the instruction was inadequate because it focused

only on the exhibits -- and not the testimony -- rests on a mistaken

premise. Moreover, the District Court gave the instruction the

day after the jury had been exposed to the excluded evidence, which

we have previously held to be sufficiently timely. See Pagán-

Ferrer, 736 F.3d at 586-87. Because Arias does not offer any

argument to overcome the presumption that the jury followed the

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judge's instruction to disregard the evidence at issue, we find no

abuse of discretion in the District Court's decision not to declare

a mistrial.

IV.

Finally, Arias challenges his sentence. As we have

noted, at sentencing, the District Court determined that Arias was

responsible for trafficking between 400 grams and 700 grams of

heroin. That determination in turn formed the basis for the

District Court's calculation of the applicable sentencing

guidelines range, which the District Court relied upon in setting

the sentence of 66 months' imprisonment.

"We review a district court's factual findings regarding

drug quantity for clear error." United States v. Mullins, 778

F.3d 37, 42 (1st Cir. 2015). We find none. The District Court

based the drug quantity determination on the following findings:

that Arias had 22.4 grams of heroin on his person when he was

arrested (which Arias does not dispute); that 30.9 grams were found

in Arias's apartment in the initial search; that 163.1 grams were

found in Arias's apartment in a subsequent search; that Arias

trafficked 302.4 grams in the nine weeks from June 15, 2013 to

August 15, 2013, based on an estimated trafficking volume of 120

bags per week; and that Arias trafficked 178 grams in the 20 weeks

between January 24, 2013 and June 7, 2013, based on an estimated

trafficking volume of 30 bags per week.

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 The District Court did not clearly err in attributing to

Arias the heroin -- totaling 30.9 grams -- found in the first

search of Arias's apartment. As we have explained before,

"'possession' includes . . . joint as well as exclusive possession.

The location of drugs or firearms in a defendant's home or car is

a common basis for attributing possession to the defendant. This

is so even if the residence or room is shared by others." United

States v. Zavala Maldonado, 23 F.3d 4, 7 (1st Cir. 1994). And

here, the record shows that officers tracked Arias driving the

Murano to and from the apartment that he lived in before and after

drug transactions.

The District Court also did not clearly err in

attributing to Arias the heroin -- totaling 163.1 grams -- found

in the second search of the apartment. Arias argues that a co-

conspirator had access to the apartment and could have moved drugs

to the apartment after Arias's arrest. But the District Court was

entitled to conclude, as the government contended, that it was

implausible that a co-conspirator would choose to store drugs in

the now-vacant apartment of a co-conspirator who had just been

arrested.

Arias next challenges the District Court's decision to

attribute 302.4 grams to him for the nine-week period from June 15

to August 15. The District Court reached this figure by

determining that Arias trafficked 60 bags, twice a week, at a

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weight of 0.28 grams of heroin per bag, over nine weeks. Arias

contends that the District Court's calculation should have been

based only on the thirteen drug transactions that appear on the

record, which Arias argues involved an average quantity of 40 bags

per transaction, with each bag having an average weight of 0.25

grams. But, "[d]rug quantity findings may be based on

approximations as long as those approximations represent reasoned

estimates of drug quantity." Mullins, 778 F.3d at 42 (citation

omitted). And here, the District Court reasonably found that Arias

engaged in two transactions per week from June 15 to August 15

involving 60 bags for each transaction. The District Court

supportably based that finding on the PSR, which in turn based

this estimate on a post-arrest estimate by Melchionda of how much

heroin he purchased from Arias and on the content of intercepted

phone calls and text messages from Arias. The District Court also

reasonably concluded that 0.28 grams per bag was an appropriate

average weight, because that was the average weight of the bags

that were seized by the government. Thus, the District Court

reasonably attributed 302.4 grams to Arias for the period between

June 15 and August 15.

If the 302.4 grams are added to the 22.4 grams of heroin

found on Arias's person when he was arrested, the 30.9 grams of

heroin found in the first search of the apartment, and the 163.1

grams of heroin found in the second search of the apartment, the

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total quantity of heroin attributable to Arias is 518.8 grams.

Because this amount is above the 400-gram threshold, we need not

consider Arias's challenge to the quantity of drugs attributed to

him for the period before June 15. But we do not find any clear

error by the District Court with respect to its finding in that

regard either.

The District Court reasonably estimated that over the

twenty weeks between January 24 and June 7, Arias sold 60 bags per

week, with a weight of 0.28 grams per bag, for a total of 336

grams. See United States v. Cintron-Echautegui, 604 F.3d 1, 7

(1st Cir. 2010) (a sentencing court may make "plausible

extrapolations from the available information"). The District

Court based this estimate on the fact that the evidence showed

that there were 598 phone calls between Melchionda and Arias during

that period of time. While these calls were not recorded, the

District Court reasonably concluded that they constituted evidence

of drug transactions because all of the phone calls between

Melchionda and Arias that were recorded after June 15, once the

wiretap became active, were drug-related. For the sake of being

"extremely conservative," the District Court then -- again, quite

reasonably -- halved that estimate to 178 grams. That estimate

assumes a volume of 30 bags per week, an amount significantly lower

than the 120 bags per week that the District Court determined that

Arias sold after June 15. See United States v. Rodríguez, 731

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F.3d 20, 32 (1st Cir. 2013) ("We have often upheld drug-quantity

findings, even if imprecise, if they were based upon conservative

estimates or favorable assumptions.").

In sum, the District Court's findings more than suffice

to justify its determination that Arias was responsible for

conspiring to distribute between 400 grams and 700 grams of heroin.

Arias's challenge to his sentence therefore fails.

V.

For the foregoing reasons, we affirm.

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