United States v. Encarnacion

26 F.4th 490

• Court: Court of Appeals for the First Circuit
• Decided: February 18, 2022
• Docket: 21-1165P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1165

UNITED STATES OF AMERICA,

Appellee,

v.

DROEL JARED ENCARNACION,

Defendant, Appellant.

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

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Lynch and Selya, Circuit Judges, and McConnell,* District Judge.

Murat Erkan, with whom Erkan & Associates was on brief, for appellant. Karen L. Eisenstadt, Assistant United States Attorney, with whom Nathaniel R. Mendell, Acting United States Attorney, was on brief, for appellee.

February 18, 2022

* Of the District of Rhode Island, sitting by designation. SELYA, Circuit Judge. Defendant-appellant Droel Jared

Encarnacion challenges his convictions for certain drug-

trafficking offenses. In support, he questions the propriety of

the wiretap that led to his apprehension, the district court's

handling of the juror-selection process, and two of the court's

evidentiary rulings. Concluding, as we do, that the defendant is

tilling barren soil, we affirm.

I

We begin by rehearsing the facts and travel of the case.

On August 2, 2018, Michael Patterson, a local police officer

delegated to work as part of a Drug Enforcement Administration

(DEA) task force, sought and received authorization from the

district court to intercept wire and electronic communications

associated with identified telephone numbers linked to suspected

drug-traffickers, including Robin Martinez Suazo (Suazo). Suazo

was no stranger to the DEA: he had come to its attention during

an earlier drug-trafficking probe.

Before seeking this wiretap authorization, the

government had conducted its investigation through the use of a

variety of techniques. It had come to believe that Suazo regularly

sought to import narcotics into Massachusetts. It had, however,

made only limited progress in discovering the wider parameters of

his drug-trafficking activities and the structure of his network.

- 2 - The wiretap on Suazo's telephone quickly bore fruit.1

On five separate dates in August and September of 2018, the DEA

intercepted calls between Suazo and a man subsequently identified

as the defendant. During the first four calls, the pair discussed

prices, quantities, and varieties of narcotics, frequently using

guarded terms and references (e.g., "blue ones," "white"), but

sometimes being more explicit. In one such call, Suazo sketched

a scenario in which a third party would purchase drugs in Utah (a

"border zone" where prices were low) and resell them for more money

in the Boston market. That paradigm was echoed in the last of the

intercepted calls: the defendant, who was in Salt Lake City, told

Suazo that he had rescheduled his flight because "the guy who was

going to give me the thing is going to give it to me today." He

added that "I have the money on me to buy the thing and I even

have the suitcases and all my things here, to buy it, send it and

go straight to the airport." In the course of that call, Suazo

reminded the defendant of the lucrative prices for which the drugs

could be resold in the Boston area. Because prices were subject

to fluctuation, there was some urgency to the deal: in Suazo's

words, "We have to put a couple pesos in our pocket, man, quickly."

1 On the intercepted calls, Suazo and the defendant spoke in Spanish. Translations were procured, and English-language transcripts were used at trial.

- 3 - A few hours after this call ended, the defendant boarded

a red-eye flight to Boston. When he arrived early the next

morning, he rented a car and drove to a house at 645 Fellsway West

in Medford, Massachusetts. He entered the house and — later that

morning — a Federal Express package was delivered. On the same

day, the defendant drove to East Boston and picked up Suazo. While

the two men were driving, DEA agents stopped their vehicle. The

unopened Federal Express package was on the floor in the front

seat. The shipping label indicated that it had been shipped by

"Droel Encarnacion" in Utah to "Elisida Figueroa" at the Fellsway

West address.2 When opened, the package was found to contain 427.3

grams (slightly less than a half kilo) of cocaine. Suazo and the

defendant were arrested on the spot.

On November 7, 2018, a federal grand jury sitting in the

District of Massachusetts returned an indictment that, as relevant

here, charged the defendant with conspiracy to possess cocaine

with intent to distribute, see 21 U.S.C. § 846, and possession of

cocaine with like intent, see id. § 841(a)(1). During pretrial

proceedings, the defendant moved to suppress the fruits of the

wiretap. The district court denied his motion and, in due season,

a three-day jury trial ensued. The jury found the defendant guilty

2 Subsequent investigation revealed that Elisida Figueroa is the defendant's mother.

- 4 - on both of the charged counts, and the district court thereafter

sentenced him. This timely appeal followed.

II

On appeal, the defendant advances four claims of error.

We deal with those claims sequentially.

A

The defendant argues that the wiretap should not have

been authorized and that, therefore, the district court erred in

denying his motion to suppress. To put this argument in

perspective, some background is useful.

Through the enactment of Title III of the Omnibus Crime

Control and Safe Streets Act of 1968 (Title III), 18 U.S.C.

§§ 2510-2522, "Congress authorized wiretapping as needed to allow

effective investigation of criminal activities while at the same

time ensuring meaningful judicial supervision and requiring

specific procedures to safeguard privacy rights." United States

v. Gordon, 871 F.3d 35, 43 (1st Cir. 2017). To that end, Title

III sets out specific showings that must be made to obtain judicial

authorization for a wiretap. See 18 U.S.C. § 2518(3).

At the outset, the government must adduce facts showing

probable cause to believe that a particular defendant is linked to

a particular crime. See id. § 2518(3)(a). It must then adduce

facts sufficient to support "probable cause for belief that

particular communications concerning that offense" are likely to

- 5 - be obtained through the desired wiretap. Id. § 2518(3)(b). Next,

the government must show that either the individual or the offense

is sufficiently connected to the means of communication that it

seeks to surveil. See id. § 2518(3)(d). Finally, the government

must make a showing of necessity, that is, a showing that "normal

investigative procedures have been tried and have failed or

reasonably appear to be unlikely to succeed if tried or to be too

dangerous." Id. § 2518(3)(c).

In this instance, the defendant premised his motion to

suppress on two theories. He alleged, first, that the wiretap

application was insufficient because the facts supporting the

initial probable-cause showing were stale and unreliable. Second,

he alleged that the wiretap application was insufficient because

the government had not made an adequate showing of necessity.

The district court found neither theory persuasive, and

the defendant now reprises them on appeal. Our standard of review

is familiar. When reviewing a district court's denial of a motion

to suppress wiretap evidence, we assay its factual findings for

clear error and its legal conclusions de novo. Gordon, 871 F.3d

at 43. In conducting this tamisage, we must determine whether the

application was at least "minimally adequate" to support the

authorization of the wiretap. Id. (quoting United States v.

Santana, 342 F.3d 60, 65 (1st Cir. 2003)).

- 6 - 1

We start with the defendant's challenge to the adequacy

of the probable-cause showing. It is common ground that

information in an affidavit supporting a wiretap application must

be timely, not stale. See, e.g., United States v. Schaefer, 87

F.3d 562, 568 (1st Cir. 1996). Information is stale if, for

example, "it established probable cause at some point in the past

but does not support probable cause at the time of the warrant's

issuance." United States v. McLellan, 792 F.3d 200, 210 (1st Cir.

2015).

Just as different kinds of produce will retain their

freshness for varying periods, the timeliness of probable cause is

context-dependent and will vary both with the nature of the

information itself and with the nature of the suspected offense.

See United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st

Cir. 2008). Thus, "[w]hen evaluating a claim of staleness, we do

not measure the timeliness of information simply by counting the

number of days that have elapsed." Id. "Instead, we must assess

the nature of the information, the nature and characteristics of

the suspected criminal activity, and the likely endurance of the

information." Id. Facts regarding an amorphous drug-trafficking

enterprise, in which large-scale transactions may take weeks or

months to mature, normally will have a longer shelf life. See

Schaefer, 87 F.3d at 568 (observing that longer-running nature of

- 7 - drug-trafficking conspiracies makes it more likely that "a datum

from the seemingly distant past will be relevant to a current

investigation"); United States v. Nocella, 849 F.2d 33, 40 (1st

Cir. 1988) (noting that "drug trafficking, if unchecked, is apt to

persist over relatively long periods of time" so that the shelf

life of facts supporting probable cause may be longer). This shelf

life sometimes may be extended when the application describes an

ongoing pattern of conduct in the drug-trafficking arena, see

Nocella, 849 F.2d at 40, because the probable cause determination

will not hinge on discrete pieces of standalone evidence but,

rather, on the totality of the circumstances, see United States v.

Anzalone, 923 F.3d 1, 5 (1st Cir. 2019) (citing District of

Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)).

In this case, the information supporting probable cause

in the wiretap application included the following:

• Early in 2017, an alias ("Jevito") used by Suazo

was mentioned on intercepted calls during a six-

month wiretap of an international drug-trafficking

organization regarding shipments of drugs from

Mexico to the United States; and a telephone number

used by Suazo was identified as participating in

multiple coded conversations about importing drugs

from Mexico into the United States.

- 8 - • On August 8, 2016, a source of information (SOI-1)

identified "Jevito" as a high-level cocaine dealer

in Massachusetts.3 SOI-1 indicated that "Jevito"

was his/her supplier for bulk cocaine and provided

a telephone number that was later identified as

having once belonged to Suazo.

• On December 27, 2017, a second source of

information (SOI-2) identified "Jevito" as an

individual living in Chelsea, Massachusetts, who

had once supplied him/her with 200 grams of

fentanyl. SOI-2 gave law enforcement a photograph

of Suazo, identifying him as the man he/she knew as

"Jevito" and confirmed that the target telephone

number belonged to "Jevito."

• In March of 2018, another source of information

(SOI-4) confirmed that "Jevito" lived in Chelsea,

identified as "Jevito's" several telephone numbers

used by Suazo, and (when describing "Jevito")

accurately described Suazo's physical appearance.

SOI-4 also vouchsafed that "Jevito" could move

substantial quantities of cocaine and

heroin/fentanyl in the Boston area.

3Our numerical references to informants (e.g., "SOI-1") track those employed by the district court.

- 9 - • In April of 2018, SOI-4 introduced "Jevito" to

another target of the investigation and brokered a

sale of a kilogram of fentanyl between the two.

"Jevito" and the second target conducted the

transaction in Chelsea on May 1, 2018, and "Jevito"

agreed to pay $50,000 for the drugs within the next

fifteen days. Telephone records and visual

surveillance corroborated SOI-4's narrative of the

transaction, and agents proceeded to recover a

kilogram of fentanyl.

• On July 17, 2018, another source of information

(SOI-3) identified "Jevito" as a leader in a drug-

trafficking organization based in Chelsea, which

was selling ten to fifteen kilograms of cocaine,

heroin, and fentanyl biweekly. Although SOI-3 had

not spoken to "Jevito" for roughly seven months,

SOI-3 had known "Jevito" for most of his/her life

and "Jevito" (he/she said) had been dealing drugs

for approximately twenty years.

• In the same time frame, SOI-3 identified a Chelsea

address associated with "Jevito," which cell phone

data later confirmed was an address where Suazo had

been.

- 10 - • Telephone records and pen register data reviewed by

government agents prior to the wiretap application

showed that the telephone number believed to be

associated with Suazo had been used to contact

several suspected drug dealers over a substantial

period (up to July 20, 2018).

To be sure, the bits and pieces of information garnered

by the government do not comprise a seamless narrative. Moreover,

the defendant notes a number of small inconsistencies in the

government's proffer. But seamless narratives are not the stuff

of wiretap applications, and to hold that these relatively small

inconsistencies undermine the district court's probable cause

determination would require us to overlook the forest for the

trees. Taken in the aggregate, the information contained in the

wiretap application told a convincing tale of ongoing drug-

trafficking activity with Suazo front and center. The whole is

sometimes greater than the sum of the parts and — viewed with an

eye towards the ongoing conspiracy — the information was not stale.

It clearly established Suazo's long-term engagement in the

wholesale drug trade in and around Boston — an engagement that

persisted up until the weeks immediately preceding the wiretap

application. The facts adduced by the government were timely and

more than "minimally adequate," Gordon, 871 F.3d at 43, to support

probable cause for belief both that Suazo was continuing to engage

- 11 - in the drug trade and that electronic monitoring would advance the

investigation of his nefarious activities.

This brings us to the defendant's contention that the

government failed to establish necessity for the wiretap. We

approach this contention mindful that "wiretapping is to be

distinctly the exception — not the rule." United States v.

Hoffman, 832 F.2d 1299, 1307 (1st Cir. 1987).

Title III's necessity requirement is designed to ensure

that the government makes a good-faith effort to exhaust other,

less intrusive investigative means before seeking to employ a

wiretap. See Gordon, 871 F.3d at 45. The government, though,

must not be held to an unrealistic standard: its explanation of

investigative avenues taken and those left unexplored "must be

viewed through the lens of what is pragmatic and achievable in the

real world." Id.; see United States v. Uribe, 890 F.2d 554, 556

(1st Cir. 1989) (noting need for "practical, commonsense

approach"). When all is said and done, an adequate showing of

necessity "should demonstrate that the government has made a

reasonable, good faith effort to run the gamut of normal

investigative procedures before resorting to means so intrusive as

electronic interception of phone calls." Gordon, 871 F.3d at 46

(quoting United States v. Martinez, 452 F.3d 1, 4 (1st Cir. 2006)).

- 12 - To carry this burden, the government is "not required

to show that other investigatory methods have been completely

unsuccessful." United States v. Rivera-Rosario, 300 F.3d 1, 19

(1st Cir. 2002). By the same token, the government need not either

"run outlandish risks or [] exhaust every conceivable alternative

before resorting to electronic surveillance." Id.; see Santana,

342 F.3d at 65. Given these parameters, it is readily apparent

that the necessity analysis demands a "context-specific" focus.

Gordon, 871 F.3d at 46.

This context-specific focus is especially apt where, as

here, an investigation centers on a sprawling drug-trafficking

network. We have noted before that "drug trafficking is inherently

difficult to detect and presents formidable problems in pinning

down the participants and defining their roles." United States v.

Santana-Dones, 920 F.3d 70, 76 (1st Cir. 2019) (quoting United

States v. David, 940 F.2d 722, 728 (1st Cir. 1991)). As a result,

"investigative personnel must be accorded some latitude in

choosing their approaches." Id.

Moving from general principles to the specific

circumstances of this case, the defendant first suggests that the

government's investigative goals were overly broad and

impermissibly vague.4 At first blush, the goals of the

4 The government's wiretap application stated that the overarching goal of the investigation was "establishing the full

- 13 - investigation appear to be in step with investigative goals that

we have approved in the past. See, e.g., Santana-Dones, 920 F.3d

at 78 (approving goals including "discovering the sources,

delivery means, storage locations, and distribution methods for

the narcotics; locating resources used to finance the trafficking;

and determining how the conspiracy invested and laundered their

drug proceeds"); United States v. Villarman-Oviedo, 325 F.3d 1, 10

(1st Cir. 2003) (approving wiretap authorization when

investigative goals involved "uncovering the full scope of the

potential crimes under investigation, as well as the identities of

those responsible for the unlawful manufacture, possession, sale

and distribution of narcotics in Puerto Rico" and "obtaining

evidence of the totality of offenses in which the targets of the

investigation were involved"). The district court did not speak

to this point, and we need not address it here: in the court

below, the defendant suggested that the goals of the investigation

were too broad and too vague only in a footnote in his memorandum

scope and nature of the criminal activities of [Suazo and the other targets] and others yet unknown and their criminal associates." The government then gave content and texture to this general goal by enumerating a series of more specific ones, including identifying suppliers; identifying redistributors and other downstream associates; identifying individuals who were assisting the targets in collecting and laundering drug proceeds; identifying locations used in furtherance of the targets' drug- trafficking activities; determining sources of illicit financing and the disposition of drug-trafficking proceeds; and illuminating drug-trafficking methods.

- 14 - in support of his motion to suppress. Given this glancing

reference, unaccompanied by any developed argumentation, we deem

this claim waived. See Teamsters Union, Local No. 59 v. Superline

Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is

settled in this circuit, it is that, absent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal.").

The defendant's next line of argument is that a wiretap

was not necessary because, after the May 1 transaction, the

government "had already achieved one of the goals of the

investigation — identifying an individual supplying drugs to

Suazo." This argument takes too myopic a view of the necessity

requirement. Although the government may have had enough

information to indict and convict Suazo and one of his suppliers

after it learned of the May 1 transaction, the government had ample

reason to believe that there were more foxes in the henhouse. The

government is not required to abjure wiretapping and terminate an

investigation once it has satisfied a limited subset of its

investigative goals. See Santana-Dones, 920 F.3d at 77 (explaining

that the necessity inquiry "does not hinge on whether it already

has garnered enough goods to pursue criminal prosecution").

Indeed, the defendant concedes that there is "no obligation to

arrest an individual as soon as probable cause to arrest ripens."

- 15 - Here, moreover, the government explained that the

supplier in the May 1 transaction, which had been brokered by SOI-

4, was not one of Suazo's regular suppliers. Consequently, the

transaction shed little light either on Suazo's overall operations

or on his working network of drug suppliers. Arresting Suazo at

that juncture would likely have driven his associates underground.

So viewed, we think that the government sufficiently explained why

its investigation should not have been concluded following the May

1 transaction.

Relatedly, the defendant argues that the government was

required to try a laundry list of less intrusive investigative

methods before seeking a wiretap. As to each of these proposed

methods, the government offered specific and reasonable

explanations why that method (alone or in combination with others)

would have been unproductive, too dangerous, or insufficient to

achieve its investigative goals.5 What is more, the government

made a cogent showing that less intrusive investigative techniques

— such as direct surveillance by law enforcement, use of

5 An example may be helpful. The defendant complains that investigators "did not even attempt to use surveillance cameras" or execute search warrants. The government, however, plausibly explained — in its wiretap application — why surveillance cameras would have been of limited utility in gathering information about the operation of the conspiracy. So, too, it paused and explained that executing search warrants for locations associated with Suazo would have been "premature" and likely to alert other members of the conspiracy to the ongoing investigation.

- 16 - confidential informants, interviews with cooperating defendants in

other cases, and review of phone and text records retrieved from

providers — had taken the investigation about as far as it could

go.

In sum, the wiretap application contained reasonable

investigative goals, and the government plausibly explained why

traditional means of investigation, including those it had already

attempted, were insufficient to achieve the stated goals of the

investigation. On this record, the district court's finding that

the government's showing of necessity was adequate easily passes

muster.

B

The defendant's next claim of error implicates the jury-

selection process. He asserts that the district court abused its

discretion in striking for cause a juror who stated during voir

dire that she was a proponent of "defunding the police." The

government defends the district court's ruling and argues, in any

event, that the defendant suffered no prejudice. See, e.g., United

States v. Brooks, 175 F.3d 605, 606 (8th Cir. 1999) ("Even if the

district court abused its discretion in striking [two prospective

jurors] for cause, [the defendants] would not be entitled to a

reversal of their convictions because they failed to show the

jurors who tried their case were biased against them.").

- 17 - We review a district court's decision to strike a

potential juror for abuse of discretion. United States v. Sampson,

486 F.3d 13, 39 (1st Cir. 2007). Because the district court has

the benefit of observing and interacting with potential jurors, we

cede substantial deference to that court in assessing potential

juror bias. See United States v. Gonzalez-Soberal, 109 F.3d 64,

69 (1st Cir. 1997). "There are few aspects of a jury trial where

we would be less inclined to disturb a trial judge's exercise of

discretion, absent clear abuse, than in ruling on challenges for

cause in the empanelling of a jury." United States v. McCarthy,

961 F.2d 972, 976 (1st Cir. 1992).

The very "purpose of a jury is to guard against the

exercise of arbitrary power." Taylor v. Louisiana, 419 U.S. 522,

530 (1975). That purpose is best served when the jury reflects a

representative cross-section of the community, free from

preconceived viewpoints. See id. It follows that fairness is the

sine qua non for jury service: the jury must be "capable and

willing to decide the case solely on the evidence before it."

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984)

(quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). The voir

dire process helps to control for this concern "by exposing

possible biases, both known and unknown, on the part of potential

jurors." Id. "Demonstrated bias in the responses to questions on

voir dire may result in a juror being excused for cause." Id.

- 18 - The defendant contends that the district court

improperly struck a juror for cause due to the juror's political

belief about "defunding the police." In the defendant's view, the

juror's comment reflected merely a principled skepticism about

police testimony — not bias. This contention, though, reads the

record through rose-colored glasses.

The critical voir dire exchange took place after the

juror had expressed her sentiments about "defunding the police":

THE COURT: I need to push you a little bit more on the answer, whether or not you have reservations about your ability to listen fairly to law enforcement testimony or you're confident you just can listen to it fairly and can make an independent evaluation based on that testimony. THE JUROR: I guess I do have slight reservations. I can't say for sure. Sorry.

Following this response, the court ruled that because the juror

"had expressed a reservation about her ability to be fair," it

would be necessary to excuse her for cause.

When a juror cannot assure the court and the parties

that she will be fair, that juror should not be allowed to serve.

Here, the juror in question expressed doubt about her ability to

be fair. See, e.g., McDonough Power Equip., 464 U.S. at 554;

Sampson v. United States, 724 F.3d 150, 165 (1st Cir. 2013). It

was, therefore, comfortably within the encincture of the district

court's discretion to strike the juror for cause.

- 19 - Contrary to the defendant's importunings, the fact that

the juror described her reservations as "slight" does not change

the calculus in any material way. Fairness is so central to the

jury system that a juror's sincerely expressed doubts about her

ability to be fair, even if slight, must be taken seriously.

Except, perhaps, in the most extraordinary circumstances — not

present here — doubts about fairness will always tilt in favor of

disqualification.

In an effort to blunt the force of this reasoning, the

defendant suggests that the district court should have drilled

down more deeply. He also suggests that the court was more

searching when questioning other members of the venire. Even if

such considerations are relevant to the question of whether the

court abused its discretion in removing for cause a juror who had

expressed reservations about her ability to be fair (a matter on

which we take no view), they are of no help to the defendant in

this case. The court's questioning of the juror was sufficient to

raise a legitimate fairness concern,6 and the record lends no

6 The district court's explanation, given in connection with defense counsel's objection to the removal of the juror for cause, is informative: There are plenty of jurors that expressed various reservations about the legal system, their views about people that use drugs, their views about drug dealers. And any of those people, if they said they could be fair, they were kept on the jury irrespective of what those views were. [This juror, though,]

- 20 - credible support to the intimation that the district court applied

some unique standard to the juror in question. Our review of the

jury-empanelment transcript confirms that the court treated

prospective jurors even-handedly in all relevant respects.

That ends this aspect of the matter. There is simply no

principled way — on this record — to hold that the district court

abused its wide discretion in removing the juror for cause.7 We

therefore reject the defendant's second claim of error.

C

The defendant's third claim is a claim of evidentiary

error: he submits that the district court abused its discretion

in admitting expert testimony from a DEA group supervisor, Mark

Tully. Although Agent Tully had not himself participated in the

investigation, the government introduced his testimony concerning

the meaning of coded language used in recorded calls between Suazo

and the defendant.

Prior to trial, the defendant moved in limine to block

Agent Tully from giving testimony. The district court denied his

motion, ruling that it would admit the testimony as long as the

government laid a proper foundation. At trial, that foundation

expressed reservations about her ability to be fair. 7 Because we find no error, we need not consider the government's back-up argument that the striking of the juror caused the defendant no prejudice.

- 21 - was laid. And when the government presented Agent Tully as an

expert, the defendant's counsel stated that he had "no objection."

In this venue, the defendant suggests that the district

court gave unconditional approval to Agent Tully's expert

testimony and, thus, he did not need to object at trial. We do

not agree. Taken in context, we think that the district court's

order was conditional thus requiring the defendant to raise any

specific objections that he might have during Agent Tully's

testimony. Even so, the defendant did not object to Agent Tully's

qualification as an expert during his testimony.

Ordinarily, a defendant must object to particular

evidence at trial in order to preserve his appellate rights. See,

e.g., United States v. Noah, 130 F.3d 490, 496 (1st Cir. 1997).

But when a defendant raises such an objection before trial by a

motion in limine and the district court's rejection of the

defendant's position is unconditional, the defendant's objection

may be deemed preserved even if not raised again at trial. See

United States v. Grullon, 996 F.3d 21, 30 (1st Cir. 2021); United

States v. Almeida, 748 F.3d 41, 50 (1st Cir. 2014). Here, however

— as we have explained — the ruling was conditional, and no

contemporaneous objection was interposed during Agent Tully's

testimony. It follows that the arguments made by the defendant on

appeal with respect to Agent Tully's testimony engender only plain

error review. See Almeida, 748 F.3d at 50. "Review for plain

- 22 - error entails four showings: (1) that an error occurred (2) which

was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001).

With this preface, we turn to the defendant's claim of

error. It rests on two grounds. First, he says that Agent Tully

should not have been allowed to testify as an expert because his

methodology was unreliable. Second, he says that Agent Tully

should not have been allowed to testify as an expert because the

communications that he purposed to interpret consisted of "plain,

uncoded language" and, thus, expert testimony was unnecessary.

Neither ground withstands scrutiny.

As a starting point, we note that the defendant does not

challenge Agent Tully's qualifications as an expert, his knowledge

of the arcane world of drug distribution, or his wide experience

in drug-trafficking investigations. Nor does he gainsay our

repeated approval of the use of expert testimony, given by veterans

of narcotics investigations, to explain the meaning of "coded"

language in drug-related communications. See, e.g., United States

v. Henry, 848 F.3d 1, 12 (1st Cir. 2017); United States v.

Santiago, 566 F.3d 65, 69 (1st Cir. 2009); Hoffman, 832 F.2d at

1310. Such testimony is often helpful because in "a rough-and-

- 23 - ready field" such as drug distribution, "experience is likely the

best teacher." Hoffman, 832 F.2d at 1310 (approving expert

qualification of veteran DEA officer on drug-trafficking codes and

jargon).

The defendant nonetheless argues that Agent Tully's

methodology was flawed. That methodology was unreliable, he says,

because it was "self-validating": as he envisions it, Agent Tully

reverse-engineered his testimony to fit the facts revealed at

subsequent stages of the conspiracy. Stripped of rhetorical

flourishes, this argument is composed of little more than smoke

and mirrors. We explain briefly.

When interpreting recorded conversations, Agent Tully

frequently would be able to narrow coded language to a range of

possible meanings. He would then determine the precise meaning of

the coded language based, in part, on what drugs had later been

seized. That was not reverse-engineering but, rather, a common

sense way of isolating the precise meaning of a coded term.

Agent Tully gave the district court a helpful

illustration of how his methodology worked. He referred to an

earlier investigation in which suspected co-conspirators discussed

"palomas" and "palomitas," each consisting of "four white doves."

Only after the contraband (four-ounce packages of cocaine) had

been seized could the precise meaning of "paloma" and "white dove"

be ascertained.

- 24 - The case at hand, Agent Tully indicated, was analogous.

Kilos of "white stuff," mentioned in the recorded calls, might

refer either to cocaine or fentanyl (both drugs in which Suazo

allegedly trafficked). Without further information — such as was

provided by an actual seizure — Agent Tully could not pinpoint

which drug was being discussed. When cocaine was seized, the

meaning became evident.

Viewed against this backdrop, the defendant's objection

crumples. Context often informs interpretive judgments, and there

is nothing problematic about an expert's methodology aligning with

common sense. Mindful of the wide variety of matters on which

expert testimony may be useful, Federal Rule of Evidence 702

demands that the inquiry into an expert's methodology must be

tailored to fit the circumstances of each particular case. See

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594 (1993)

("The inquiry envisioned by Rule 702 is, we emphasize, a flexible

one."). Especially outside of scientific fields, factors bearing

on the reliability of an expert's methodology will vary. See Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (noting that

because there are "many different kinds of experts, and many

different kinds of expertise," the factors relevant to the

reliability inquiry will vary). The methodology used by Agent

Tully was not beyond the pale. In point of fact, that methodology

- 25 - is strikingly similar to methodologies that we have deemed reliable

in other cases. See, e.g., Henry, 848 F.3d at 12.

In a variation on this theme, the defendant argues that

the subject matter of Agent Tully's testimony was such that it did

not allow for any expert testimony at all. As was true of his

"methodology" argument, this dog will not hunt.

We agree, of course, that a party should not be allowed

to confer the imprimatur of expertise upon interpretations of

evidence that jurors need no assistance in understanding. See

United States v. Valdivia, 680 F.3d 33, 51 (1st Cir. 2012)

(explaining that when "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"

(quoting United States v. Montas, 41 F.3d 775, 784 (1st Cir.

1994))). In this case, though, it was neither clear nor obvious

error for the district court to conclude that the decisional scales

tipped in favor of allowing expert testimony.

To begin, it was neither clear nor obvious error for the

district court to find that expert testimony would be helpful to

the jury in understanding the jargon used by Suazo and his

confederates. For instance, when Suazo and the defendant discussed

"blue ones" and "yellow ones," the Agent's expert testimony

rendered those terms intelligible as, respectively, 30-milligram

Percocet pills and 10-milligram Percocet pills. His expert

- 26 - knowledge as to the color and strength of pills peddled by drug

dealers in the New England market was helpful to the jury in

understanding the recorded conversations.

We think, as well, that Agent Tully's expertise was

helpful to the jury in explaining the nature of the transactions

to which the coded terms related. See Henry, 848 F.3d at 12

(upholding officer's expert testimony not directly related

"obscure jargon" admissible because officer "drew upon his

expertise in explaining the relevance of the communications in the

drug trade"); United States v. Monell, 801 F.3d 34, 45 (1st Cir.

2015) (permitting expert testimony related to drug-dealer

methods). For example, Agent Tully was able to assist the jury in

understanding the economics behind an intercepted discussion of

the relative advantages of "pure" cocaine versus "cut" cocaine.

Because a pure product can be cut without degrading its potency

below marketable quality, more profit can be reaped from increasing

marketable volume through the use of adulterants. In contrast, a

"cut" product yields profit mainly through price arbitrage between

locations — "getting it here and selling it." And, relatedly,

Agent Tully was able to explain how discussions of price tied into

these distinctions.

Last — but surely not least — the district court took

appropriate steps to guard against any unfair prejudice. For one

thing, it gave considerable latitude to the defendant in cross-

- 27 - examining Agent Tully about alternate meanings of various terms.

For another thing, it was careful to instruct the jury to weigh

the evidence independently.8 These safeguards were sufficient —

in the circumstances at hand — to mitigate any risk of unfair

prejudice. See Henry, 848 F.3d at 12; Rosado-Pérez, 605 F.3d at

56.

Nothing more need be said about Agent Tully's testimony.

We conclude that there was no plain error in the district court's

challenged rulings concerning this testimony. Accordingly, we

reject the defendant's third claim of error.

D

This leaves the defendant's claim that the district

court erred in permitting the government to introduce evidence of

four intercepted calls between Suazo and the defendant. In those

calls, the two men discussed, among other things, potential drug

transactions apart from the one that led directly to the

defendant's arrest.

8Pertinently, the district court instructed the jury that it was free to "accept or reject [the expert's] testimony in whole or in part." The court also instructed the jury that "[i]n weighing the testimony, [it] should consider the factors that generally bear upon the credibility of a witness as well as the expert witness's education and experience, the soundness of the reasons given for the opinion and all other evidence in the case." Finally, the court directed that the jury alone should "decide how much of the expert witness's testimony to believe, and how much weight it should be given."

- 28 - The question is one of timing. The indictment charged

a compressed conspiracy beginning on September 17, 2018 and ending

on September 18 of the same year. The four challenged calls

occurred on earlier dates (August 12, August 20, August 29,

September 11). During pretrial proceedings, the defendant moved

in limine to exclude evidence of these calls, contending that

because they took place before the opening date of the charged

conspiracy and some involved different drugs, they were "prior bad

acts" evidence, likely to confuse the jury and cause unfair

prejudice. See Fed. R. Evid. 404(b); see also Fed. R. Evid. 403.

The district court denied the defendant's motion,

holding that the four challenged calls did not reflect "separate

acts, but rather acts intrinsic to the charged conspiracy" and,

thus, were admissible without regard to Rule 404(b). In the

court's view, the conversations — which dealt with the "planning

other similar narcotics transactions" — furnished "evidence of how

the [d]efendant and his co-conspirator entered into an overarching

conspiracy" and were admissible to "show the course of dealings

between co-conspirators." The district court held, in the

alternative, that even if the four calls were considered "prior

bad acts" evidence within the ambit of Rule 404(b), they

nonetheless could be admissible to "explain the background,

formation, and development of the illegal relationship." (quoting

United States v. Green, 698 F.3d 48, 55 (1st Cir. 2012)). The

- 29 - court added that the probative value of the evidence was not

substantially outweighed by any cognizable danger of unfair

prejudice.

The defendant renewed this objection at trial, but the

district court held firm. The evidence was admitted, and the

defendant presses his claim of error on appeal. Our review is for

abuse of discretion. See United States v. Simon, 12 F.4th 1, 40-

42 (1st Cir. 2021) (Rule 403); United States v. Robles-Alvarez,

874 F.3d 46, 50 (1st Cir. 2017) (Rule 404(b)).

Under Rule 404(b), evidence of other acts is not

admissible to prove a defendant's character or propensity, but

such evidence may be admitted if it has "special relevance."

Henry, 848 F.3d at 8. Evidence may have special relevance if it

is offered to show, say, "motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident." Fed. R. Evid. 404(b)(2). Even if specially

relevant, though, such evidence is inadmissible if its probative

value is substantially outweighed by its unfairly prejudicial

effect. See Fed. R. Evid. 403. And when evidence is intrinsic to

elements of a charged offense, Rule 404(b) is simply not

implicated. See, e.g., Robles-Alvarez, 874 F.3d at 50; Villarman-

Oviedo, 325 F.3d at 11.

Here, the district court, in effect, used a belt and

suspenders. The court prudently made alternative holdings. It

- 30 - held that the challenged calls were intrinsic to the conspiracy

and that — even if they were not — they were admissible under Rule

404(b). The defendant contests both rationales.

To begin, the defendant contends that the calls were not

intrinsic to the charged conspiracy because they transpired

several weeks before the conspiracy's opening date. Moreover,

certain of the calls focused on drugs and transactions other than

the ones involved in the charged conspiracy. This contention is

not without some bite, and we think it arguable that some of the

calls were not intrinsic to the charged conspiracy. But we need

not decide this question: rather, we assume, albeit without

deciding, that the four earlier calls were not intrinsic to the

charged conspiracy and that, therefore, Rule 404(b) applies.

Even on this defendant-friendly assumption, it was not

an abuse of discretion to admit the four recorded conversations

into evidence. In our judgment, the district court did not abuse

its discretion in determining that all the calls had special

relevance because they were harbingers of what was to come: they

were probative of the development of the charged conspiracy and of

the nature of the working relationship between Suazo and the

defendant. See United States v. Green, 698 F.3d 48, 55 (1st Cir.

2012) (holding that "in a conspiracy case, 'evidence of other bad

acts . . . can be admitted to explain the background, formation,

and development of the illegal relationship, and, more

- 31 - specifically, to help the jury understand the basis for the co-

conspirators' relationship of mutual trust'" (alteration in

original) (quoting United States v. Escobar-de Jesús, 187 F.3d

148, 169 (1st Cir. 1999))).

The defendant demurs, insisting that even if the calls

had special relevance, their admission created an intolerable risk

of unfair prejudice. Admitting them, he muses, likely lured the

jury into convicting him based on general speculation that he was

a drug dealer.

The district court rejected this plaint, and so do we.

Particularly in light of the revelatory nature of the calls and

the other compelling evidence of the defendant's guilt, the

district court did not abuse its discretion in determining that

the probative value of the calls was not substantially outweighed

by any unfairly prejudicial effect. See Green, 698 F.3d at 56;

Escobar-de Jesús, 187 F.3d at 169-70; see also Fed. R. Evid. 403.

We have made it luminously clear that "[o]nly rarely — and in

extraordinarily compelling circumstances — will we, from the vista

of a cold appellate record, reverse a district court's on-the-spot

judgment concerning the relative weighing of probative value and

unfair effect." United States v. Mehanna, 735 F.3d 32, 59 (1st

Cir. 2013) (quoting Freeman v. Package Mach. Co., 865 F.2d 1331,

1340 (1st Cir. 1988)). This is a far cry from that rare case.

- 32 - III

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

the judgment of the district court is

Affirmed.

- 33 -