United States Court of Appeals For the First Circuit
No. 18-1277
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL GORDON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Howard, Chief Judge, Selya and Lynch, Circuit Judges.
Michelle Menken, with whom The Law Office of Michelle Menken was on brief, for appellant. Alexia R. De Vincentis, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
March 27, 2020 LYNCH, Circuit Judge. A federal jury convicted Michael
Gordon in 2017 of conspiracy to possess with intent to distribute
marijuana, conspiracy to distribute marijuana, conspiracy to
commit money laundering, and nine counts of money laundering. He
now advances four challenges to his convictions. He argues that
the district court should have suppressed certain evidence against
him, that it improperly excused certain potential jurors during
voir dire, that it erred by admitting certain expert testimony,
and that there was insufficient evidence for a reasonable jury to
find him guilty of money laundering.
We conclude that each of his arguments fails. We affirm.
I.
A. Facts
We draw the facts relevant to the appeal of the denial
of the motion to suppress primarily from the magistrate judge's
supportable findings, which the district court adopted. Our review
is "consistent with record support, with the addition of undisputed
facts drawn from the suppression hearing." United States v.
Hernandez-Mieses, 931 F.3d 134, 137 (1st Cir. 2019) (citing United
States v. Dancy, 640 F.3d 455, 458 (1st Cir. 2011)). We state
facts relevant to Gordon's sufficiency challenge "in the light
most favorable to the jury's verdict." United States v. Ciresi,
697 F.3d 19, 23 (1st Cir. 2012). We add facts relevant only to
- 2 - Gordon's voir dire and expert testimony challenges in our
discussion of those claims.
On August 11, 2011, Gordon entered a security checkpoint
at Logan International Airport ("Logan") in Boston with a boarding
pass for a flight to San Francisco and a small piece of carry-on
luggage. During the security screening, Transportation Security
Administration ("TSA") screeners discovered a significant amount
of cash in his luggage. The money was in six bundles of hundred-
dollar bills, each bound with elastic bands and concealed in three
pairs of pants. TSA called the Massachusetts State Police ("MSP")
for assistance, and two MSP detectives, Sergeant Richard Galeazzi
and Trooper John Morris, arrived within fifteen minutes. Both
were wearing plain clothes with no visible weapon.
Sgt. Galeazzi asked to see Gordon's identification and
boarding pass. Gordon complied. Sgt. Galeazzi returned the
identification and boarding pass to Gordon. Sgt. Galeazzi told
Gordon that he was free to go at any time and was not required to
answer questions. Sgt. Galeazzi then told Gordon that they wanted
to ask him questions about the money in his bag and asked him if
he would be willing to answer questions. Gordon agreed. His bag
remained in the screening area.
Sgt. Galeazzi and Gordon spoke for about ten minutes.
Gordon told Sgt. Galeazzi that he owned Mike's Auto Body in the
Dorchester neighborhood of Boston and was going to San Francisco
- 3 - to buy used cars at an auction for resale at his body shop. He
said he bought cars in San Francisco because they were cheaper
than in Boston. Gordon also said he was meeting someone in San
Francisco who would take him to the auction, but could not identify
that person. He said he did not know where he would stay in
California. Sgt. Galeazzi also asked how much money Gordon was
carrying, and Gordon answered that it was $27,000.
While Sgt. Galeazzi spoke with Gordon, Trooper Morris
used his cell phone to request a criminal history check on Gordon.
The check revealed that Gordon was suspected of marijuana
trafficking and had been arrested in May 2011 in California for
attempting to purchase 250 pounds of marijuana.
Based on his conversation with Gordon, the criminal
history check, the amount of money and the way it was bundled, and
an apparently mistaken belief that Gordon was traveling on a one-
way ticket, Sgt. Galeazzi decided to seize the money as suspected
drug proceeds. Sgt. Galeazzi asked Gordon if he wished to
accompany the detectives to the MSP barracks to obtain a receipt
for the money, but Gordon declined and decided to continue to San
Francisco. He had missed his flight, but took a later flight.
A trained canine later sniffed the money at the MSP
barracks and alerted to the presence of narcotics. A count of the
money revealed that it was $60,000, not $27,000 as Gordon had
- 4 - claimed. The matter was later referred to Homeland Security
Investigations (HSI) for civil forfeiture proceedings.
Gordon later filed a claim for the money and, on October
24, 2011, Gordon's lawyer, Michael Paris, contacted HSI Special
Agent Richard Atwood. Paris gave Atwood a copy of Gordon's 2010
tax return, the tax registration of Gordon's business, a list of
Gordon's past auction purchases, and other documents.
On November 14, 2011, Special Agent Atwood invited
Gordon and Paris to participate in an interview about the source
of the money. Atwood asked them to bring documentation of the
money's legitimate source, such as personal and business tax
returns and sale contracts for Gordon's car purchases. Through
Paris, Gordon agreed to be interviewed.
On January 11, 2012, Gordon and Paris met with Atwood
and Special Agent Peter Darling. Gordon offered his 2009 personal
tax return, copies of a few titles for vehicles purchased in 2010,
and a power of attorney form from Caraballo Auto Sales and Repair
for title signing at auctions. He did not offer any business tax
returns or other documentation of car purchases.
Atwood asked Gordon to describe what happened at Logan
five months earlier. Gordon said he had been traveling to San
Francisco on a round-trip ticket and that TSA had searched his bag
mistakenly. In fact, Gordon said, it was the bag in front of his
that had caused an alert. He said he had purchased his tickets a
- 5 - couple of days before the flight and was going to stay in
California for two days to attend an auto auction.
Atwood then asked Gordon whether the MSP had asked him
about the money found in his bag. Gordon said they had. Atwood
asked where Gordon stored the money before going to the airport.
Gordon first answered that he kept some of it in a safe deposit
box, but changed his answer and said he kept some of it in a safe
at his house. Darling asked Gordon if he had withdrawn any of the
money from a bank before traveling, and Gordon answered, "I could
of," and that he used Bank of America.
Atwood asked Gordon why he had told the officers that
the money was only $27,000, not $60,000. Gordon said he did not
remember saying it was $27,000. Atwood asked Gordon whether he
had counted the money before packing it, and Gordon hesitated
several times before saying he had. Atwood asked Gordon why he
had not waited to get a receipt from the MSP, and Gordon replied
that he wanted to make his flight.
Atwood asked Gordon why he told the MSP that it was
cheaper to buy used cars in California. Gordon said he did not
say that and explained that he bought cars in California because
of the greater availability there of high-end cars.
Atwood asked Gordon how he paid for the cars he bought
at auctions. Gordon said he brought cash because he did not know
how much the cars he wanted to buy would sell for, so he would buy
- 6 - a money order after winning the auction. Darling asked Gordon why
he did not visit a Bank of America branch after winning and get a
bank check or money order drawn on his account. Gordon answered
that the Oakland area, where the auction was, did not have Bank of
America branches. The agents' research showed that Oakland has
numerous Bank of America branches.
Darling asked Gordon if he completed currency
transaction reports, required for transactions over $10,000, when
obtaining a bank check or money order in Oakland. Gordon answered
that he went to multiple banks to purchase multiple orders, each
for less than $10,000, and avoid showing identification and filling
out a currency transaction report.
Atwood asked Gordon how, given that his 2010 tax return
showed a business loss of $33,000 while his 2009 tax return showed
business income of $17,358, he had $60,000 cash in his home. After
pausing, Gordon answered that the money was from buying and selling
cars and that he would not mess with the IRS.
Atwood asked Gordon whether he had ever been arrested.
Gordon said he had been, mostly for drugs. Atwood asked about
Gordon's May 2011 arrest in California. Gordon said he had been
with friends and family who had drugs on them. He said he had
been pulled over near Los Angeles with two friends, whom he
identified as Juan, without providing a last name, and a friend of
Juan's, for whom he provided no name at all. He said Juan and his
- 7 - friend had been giving Gordon a ride, but he could not identify
their destination. When Darling asked Gordon whether he had known
that 250 pounds of marijuana were in the vehicle, Paris stopped
the questioning on that subject.
Asked which car carrier company Gordon used to ship
purchased cars back to Massachusetts, Gordon said he used his own.
He said that, although he did not have a commercial driver's
license (CDL), his trailer truck carried only two vehicles and did
not require a CDL.
Neither Gordon nor Paris ever gave the agents any bank
documents showing large balances in a business or personal account
or documentation of withdrawals before the August 11, 2011, seizure
at Logan.
After the interview, Atwood began nearly daily
surveillance of Mike's Auto Body -- Gordon's Dorchester-based
business -- using a pole camera and physical observation. On
August 8, 2012, during that surveillance, Atwood observed Gordon
arrive with a medium-sized shipping box and bring it into the shop.
Another person then arrived in another vehicle and placed what
appeared to be the same box into his own vehicle, which was then
towed. Officers stopped the tow truck at Atwood's request, and
the box was found to contain over two kilograms of marijuana.
Atwood's investigation also revealed that Gordon made
over thirty trips between Boston and the San Francisco area in the
- 8 - period of July 2010 and March 2014, either with no return ticket
or a return one to three days after arriving. Agents also observed
on multiple occasions Gordon shipping boxes from post offices and
FedEx facilities near San Francisco before he flew back to Boston.
They later tracked those packages to various locations in and
around Boston and intercepted several that contained marijuana.
The investigation also revealed two locations in California where
marijuana was being grown that appeared to be connected to Gordon.
Ultimately, the investigation found that Gordon shipped over 300
packages from California to Boston, likely containing at least
1,000 kilograms of marijuana in total.
On November 6, 2014, law enforcement executed a search
warrant on Gordon's house, where they found a suitcase of
marijuana, a bucket of marijuana, a firearm and ammunition, and
rolls of vacuum-sealer plastic.
Law enforcement also reviewed Gordon's bank records,
which showed expenditures that exceeded the approximately $100,000
annual profit of Mike's Auto Body by several hundred thousand
dollars. The accounts showed frequent cash and money order
deposits, typically in multiples of a hundred. They also showed
that Gordon used funds from the accounts to buy properties:
$129,500 towards a home in Coral Springs, Florida, in April 2012;
$148,423 towards another home in Coral Springs, Florida, in June
2012; and $330,000 for his home in Randolph, Massachusetts. He
- 9 - also then used more than $290,000 to pay off mortgages on the Coral
Springs homes and bought a $26,000 car using a cashier's check.
B. Legal Proceedings
On September 23, 2015, a federal grand jury returned a
fourteen-count superseding indictment charging Gordon with
conspiracy to distribute and to possess with intent to distribute
marijuana in violation of 21 U.S.C. § 846; conspiracy to launder
monetary instruments in violation of 18 U.S.C. § 1956(h); and
twelve counts of money laundering in violation of 18 U.S.C.
§§ 1956(a)(1)(B)(i) and 1957.
On October 13, 2015, Gordon moved to suppress the fruits
of the August 11, 2011, events at Logan. The district court
referred the matter to a magistrate judge, who conducted an
evidentiary hearing at which Sgt. Galeazzi, Trooper Morris, and
Gordon testified. On August 30, 2016, the magistrate judge issued
a report and recommendation that recommended denying the motions
to suppress. The magistrate judge found, inter alia, that Gordon
provided law enforcement with much of the same evidence found at
Logan when he met with Atwood and Darling five months later. The
magistrate judge found that the later meeting was sufficiently
attenuated from the airport search that it was not fruit of the
poisonous tree of the airport encounter. As a result, the
magistrate judge concluded that the fruits of the investigation
did not require suppression because the agents pursued that
- 10 - investigation based on information lawfully acquired from the
later meeting with Gordon. Gordon timely objected.
On May 1, 2017, the district court held a hearing on
Gordon's objections and solicited briefing on the scope of its
review of the magistrate judge's findings as to the motion to
suppress, which the parties submitted. On November 14, 2017, the
district court adopted the magistrate judge's report and
recommendation and denied Gordon's motion.
Gordon proceeded to trial, and on December 14, 2017, the
jury found Gordon guilty on eleven of the fourteen counts. On
March 27, 2018, the district court sentenced Gordon to fifteen
years' incarceration and five years' supervised release.
Gordon timely appealed.
II.
Gordon first argues that the district court improperly
denied his motion to suppress the fruits of the airport encounter.
Although the government did not introduce at trial evidence of
either the airport encounter or the later interview, Gordon argues
that most of the evidence used at trial was the fruit of the
airport encounter, and so it should have been suppressed.
In reviewing the denial of a motion to suppress, we
review the district court's findings of fact for clear error and
its conclusions of law, including its ultimate constitutional
determinations, de novo. See United States v. Flores, 888 F.3d
- 11 - 537, 543 (1st Cir. 2018). "In determining the outcome [of a motion
to suppress] under the attenuation doctrine, the court of appeals
does not defer to the district court." United States v. Stark,
499 F.3d 72, 75 (1st Cir. 2007) (alteration in original) (quoting
United States v. Paradis, 351 F.3d 21, 32 (1st Cir. 2003)). "[W]e
will uphold a denial of a suppression motion as long as 'any
reasonable view of the evidence supports the decision.'" United
States v. Clark, 685 F.3d 72, 75 (1st Cir. 2012) (quoting United
States v. Woodbury, 511 F.3d 93, 96-97 (1st Cir. 2007)).
Gordon advances several challenges to the denial of his
motion to suppress. He argues that he was illegally detained
between the TSA search and the arrival of the MSP detectives and
during the subsequent discussion, that the magistrate judge's
finding of attenuation lacked adequate support, and that the
district court did not conduct the de novo determination required
under 28 U.S.C. § 636(b)(1) and erroneously believed that it did
not have authority to rehear witness testimony. We do not need to
reach Gordon's Fourth Amendment arguments because the attenuation
doctrine resolves against him all of his Fourth Amendment claims.
The use of the doctrine does not require the assessment of the
credibility of any witness before the magistrate judge, so Gordon's
procedural argument that the district court was required to rehear
testimony is not relevant to our decision.
- 12 - Courts "need not hold that all evidence is 'fruit of the
poisonous tree'" where law enforcement would not have discovered
the evidence but for some earlier illegal conduct. Stark, 499
F.3d at 76 (quoting Wong Sun v. United States, 371 U.S. 471, 487–
88 (1963)). Rather, evidence may be admitted when later obtained
"by means sufficiently distinguishable" from the initial means.
Wong Sun, 371 U.S. at 488. In determining whether the later means
is sufficiently attenuated from the earlier, we balance the
following factors: (1) "[t]he voluntariness of the statement";
(2) "[t]he temporal proximity" of the earlier and later means; (3)
"the presence of intervening circumstances"; and (4) "the purpose
and flagrancy" of law enforcement's initial misconduct. Brown v.
Illinois, 422 U.S. 590, 603–04 (1975).
All four factors point against suppression, and so the
attenuation doctrine allows the admission of the challenged
evidence. We need not resolve Gordon's contention that the airport
encounter was illegal and instead assume without deciding that it
amounted to an unconstitutional seizure. Because the information
Gordon provided during the interview and the subsequent
investigatory findings were not fruits of the poisonous tree, they
could not be suppressed.
First, Gordon's January 2012 interview with Atwood and
Darling was plainly voluntary. "Volition and knowledge must be
judged by the totality of the circumstances and outward
- 13 - manifestations." United States v. Monti, 557 F.2d 899, 904 (1st
Cir. 1977). Gordon himself filed a claim for the money seized at
Logan, and his lawyer contacted HSI to discuss its return and
provided documents about Gordon's finances. Gordon was fully
represented and accompanied by counsel, and his lawyer instructed
him not to answer certain questions. There is no evidence that
Atwood or Darling used any "overbearing or abusive treatment" or
"forceful[] coerc[ion]." Id. at 903.
Second, the interview took place five months after the
airport encounter, far longer than in other cases where we have
found attenuation. See Stark, 499 F.3d at 76 (finding attenuation
where confession was two days after illegal search); Paradis, 351
F.3d at 34 (finding attenuation where statements were made seven
days after illegal seizure). Gordon had far more than enough time
to consider with a clear head and advice of counsel whether to
make statements to law enforcement after the airport encounter.
Third, between the airport encounter and the later
interview, Gordon retained counsel and filed a claim for the money
seized at Logan. He then contacted HSI and agreed to the agents'
suggestion of an in-person interview. Given these intervening
circumstances, it can be fairly said that his statements at the
interview were "relaxed, composed, and uncoerced." United States
v. Ayres, 725 F.2d 806, 810 (1st Cir. 1984).
- 14 - Finally, nothing about the airport seizure suggests that
it involved flagrant official misconduct. Rather, it appears to
be a typical investigative reaction to the discovery of a
significant amount of cash.
Gordon argues that the magistrate judge "did not explore
the central question of whether Gordon submitted to Atwood's
interview of his own accord or, instead, whether the interview was
only obtained via exploitation of the airport encounters."1 This
is immaterial. First, as we have stated, our review of the
attenuation question is de novo and without deference to the
district court or the magistrate judge. Second, Gordon offered no
evidence that genuinely disputes that his consent to the later
interview was voluntary.
Gordon's later interview was sufficiently attenuated
from the airport encounter to render the fruits of the interview
admissible regardless of the circumstances of the airport
encounter. Because that interview gave law enforcement
essentially the same information as the airport encounter, any
1In his reply brief, Gordon argues for the first time that the magistrate judge resolved the attenuation issue based on the agent's affidavit after suggesting that he would deal with it at a later date, depriving Gordon of the chance to present evidence on the issue. But this argument is waived because "new arguments may not be raised for the first time in a reply brief." Villoldo v. Castro Ruz, 821 F.3d 196, 206 n.5 (1st Cir. 2016). At any rate, Gordon gives no indication of the evidence he would have introduced to dispute the contents of the affidavit.
- 15 - possible unconstitutional conduct at the airport did not taint the
fruits of the subsequent investigation. Gordon's motion to
suppress the fruits of the airport encounter was properly denied.
III.
Gordon next argues that the district court's voir dire
unfairly excluded jurors by focusing not on "whether the jurors
would follow the law," but rather on "whether their views or
experiences would have any effect at all on the performance of
their duties." When we review a district court's findings of juror
impartiality, "the deference due . . . is at its pinnacle."
Skilling v. United States, 561 U.S. 358, 396 (2010). Gordon has
preserved his arguments as to only one juror, Juror D. We review
the district court's decision as to Juror D for "a 'clear abuse of
discretion.'" United States v. Kar, 851 F.3d 59, 68 (1st Cir.
2017) (quoting United States v. Godfrey, 787 F.3d 72, 81 (1st Cir.
2015)). We review Gordon's arguments as to other jurors "only for
plain error." United States v. Casanova, 886 F.3d 55, 60 (1st
Cir. 2018).
Before voir dire, the government requested that the
district court ask prospective jurors about their views on
marijuana and its legalization. Without objection, the district
court addressed the venire:
This is a case about marijuana . . . and in the Commonwealth of Massachusetts the Commonwealth has undertaken to make certain
- 16 - measures that make some transactions in marijuana legal.
. . . .
So, what I am really interested in at this point is whether any of you have such strong views about . . . the regulation of drugs, specifically marijuana, that would interfere with your ability to be fair and impartial, that is to say, you would say, "I heard all of that evidence. I heard what the judge said the law is. I have my own views." That is unfair, fundamentally unfair, but we have to know whether or not any of you have such strong views about that, public policy views about that, that would interfere with your ability to be fair and impartial.
Gordon argues that the district court abused its discretion in
excusing four potential jurors based on their responses to this
inquiry. He objected to only one of the excused jurors, Juror D,
before the district court.
Juror D told the district court: "I smoke [marijuana]
daily, every day. I'm trying to get employed in the cannabis
industry. So, I'm not sure if that's going to be any kind of a
problem." The district court responded, "Well, I think it poses
some issues for this case, and so I am going to excuse you as a
juror here."
After Juror D left sidebar, the defense objected to the
juror's "being excused for cause without further questioning."
The district court responded:
I don't think there is a need to do further questioning here. This is someone who has prospective financial interest, not
- 17 - dissimilar to the fellow to whom you did not object who is about to be an investor or is an investor in this area.2 So, on its face it seems to me that someone who has got a vested interest in the business itself, which is contested territory, should be excused, and for that reason I excuse him.
The court excused Juror D.
It is clear that there was no abuse of discretion in the
district court's decision to excuse Juror D. The district court
explained that it excused Juror D because he intended to
participate in the marijuana industry, a state-authorized business
that is in some sense similar to the illicit activity being
prosecuted in Gordon's case. Although Gordon argues that the
district court should have inquired further about whether Juror D
could evaluate Gordon's case fairly despite his involvement in the
marijuana industry, the district court made clear that it believed
Juror D's comment sufficed on its own to make clear his lack of
impartiality. Given the obvious connection between the charged
conduct and Juror D's professional intent, we cannot say that this
was an abuse of discretion.
2 The district court had also excused Juror F, who was "one of the six principal investors and about a week away from being a member of . . . a Massachusetts medical [and recreational] marijuana distributor" and "d[id]n't really feel [he] could be impartial in a marijuana case." Gordon did not object when the district court excused Juror F and does not raise this exclusion on appeal.
- 18 - Gordon also objects to the district court's decision to
excuse three other potential jurors.3 Because he did not object
contemporaneously when they were excused, we review Gordon's
challenges for plain error.
The gravamen of Gordon's argument as to these jurors is
that the district court abused its discretion by focusing its voir
dire questions on potential jurors' ability to put aside their
outside experiences rather than on their ability to remain
impartial. But our review is only for plain error, and we owe
substantial deference to the district court's decision on how to
conduct voir dire. See United States v. Parker, 872 F.3d 1, 7-8
(1st Cir. 2017). Gordon offers no support for his argument that
the district court was required to put identical questions to each
potential juror. At any rate, as we explain, the district court's
voir dire inquired about each potential juror's ability to be
impartial.
First, Juror P told the district court that her younger
brother had served ten years in prison for distribution of
methamphetamine and recently been released. The district court
asked whether that experience would "influence [her] judgment."
3 In his reply brief, Gordon discusses the voir dire of additional jurors and appears to argue that other improprieties occurred. But this argument is also waived for being mentioned for the first time in his reply brief. Villoldo, 821 F.3d at 206 n.5.
- 19 - Juror P responded that she "[thought] it could, to be honest."
The district court excused Juror P without objection.
Second, Juror GG told the district court that he
personally believe[d] that marijuana in itself can be an extremely useful drug. I have many friends who were near suicidal actually use marijuana to even out their life in a lot of ways. . . . I personally believe that the current culture around marijuana is bad . . . it doesn't fit the severity of the drug, in my opinion.
The district court asked whether that belief would "cause [him] to
put [his] thumb on the scale." Juror GG responded that he "[felt]
like it might." The district court again asked whether "on the
marijuana issue . . . [he] would lean toward one side or the
other." Juror GG said he would. The district court excused Juror
GG without objection.
Third, and finally, Juror S told the district court that
her "dad used to work in a company and got caught up in drug.
That's how we end up here, as a refugee." The district court asked
Juror S to explain further. She answered:
So my dad used [to] work in a company that -- at the time there was something about against narcotic traffic, drugs, come here to the United States, stuff my dad was kind of the manager. And the people over there did attack, and he was being prosecuted, like, trying to look for him. And I was escaping from there and come to the United States.
The district court asked whether that experience would "affect
[her] judgment in this case." Juror S answered, "I think it is
- 20 - because every time I think about it, I remember the helicopter,
that when he was going toward and explode." The district court
excused Juror S without objection.
Gordon's challenge, which he raises for the first time
on appeal, is that the district court's "pattern of
disqualifications . . . exclud[ed] a vital component of the
Massachusetts community," those who disagree with federal law's
prohibition on marijuana. But we review the district court's
decision to excuse Jurors P, GG, and S only for plain error, and
all specifically expressed that they did not feel they could be
impartial in Gordon's case. That these jurors were excused does
not demonstrate that a portion of the jury pool was systematically
excluded. We find no error, much less plain error, in the district
court's decision to excuse these jurors.
IV.
Gordon next challenges the admission of certain expert
testimony at his trial.
On the seventh day of trial, the government called Drug
Enforcement Administration Special Agent Mark Tully, for whom the
government had provided an expert disclosure to the defense. After
the government qualified Tully as an expert, it began to examine
him about how marijuana trafficking operations typically work.
During the prosecutor's examination, the district court
interrupted and instructed the jury:
- 21 - You have heard, ladies and gentlemen, the reference to someone who is an expert. Let me explain what an "expert" is. An "expert" is a person who can offer an opinion in the case. The Court doesn't give a Good Housekeeping Seal of Approval to someone who is designated an expert. It simply says this is a person who can offer an opinion before the jury. You can evaluate that testimony as you will, just like any other witness. There are some areas of expertise that go a little bit beyond that, and I am excluding this testimony by [the prosecutor] using Agent Tully as a backboard.
The government continued examining Tully on domestic manufacture
of marijuana. When the government asked how traffickers typically
move marijuana from California to the East Coast, the defense
objected "on basically whether or not this is the subject of expert
testimony." The district court overruled the objection and
"permit[ted Tully] to testify as to his observations in the course
of his work regarding this."
Over repeated objections from the defense, Tully
testified that traffickers typically move marijuana eastward by
privately owned vehicles, aboard private aircraft, or by shipping
it through the mail or via a private parcel service, often to
places called "stash locations" where they do not live. He
testified that trusted members of the trafficking organization at
the stash locations often break down the marijuana into smaller
amounts for distribution. He also testified that marijuana
traffickers often use large amounts of cash and that marijuana
from the West Coast sells in Boston for $2,500 to $4,500 per pound.
- 22 - Gordon argues that Tully's testimony was unnecessary
because it contained "nothing especially obscure or complex" and
because "the legal status and social acceptance of [marijuana] in
Massachusetts meant that most jurors would have a rough idea of
its origins, packaging, odor, cost, appropriate quantities for
personal use, etc." He argues that Tully's testimony improperly
gave rise to the inference that the money Gordon laundered must
have been from marijuana distribution in Massachusetts.
"We review the admission of lay opinion and expert
testimony for manifest abuse of discretion." United States v.
Valdivia, 680 F.3d 33, 50 (1st Cir. 2012). "A district judge, who
sees and hears the challenged evidence first hand in the context
of the overall trial, enjoys broad discretion in determining the
admissibility of expert testimony; an appellate court will
overturn such a determination only if it represents a manifest
abuse of discretion." United States v. Montas, 41 F.3d 775, 783
(1st Cir. 1994).
Federal Rule of Evidence 702 allows experts to testify
based on "scientific, technical, or other specialized knowledge”
if it "will help the trier of fact to understand the evidence or
to determine a fact in issue." "We have admitted expert testimony
regarding the operation of criminal schemes and activities in a
variety of contexts, finding such testimony helpful to juries in
understanding some obscure or complex aspect of the crime."
- 23 - Montas, 41 F.3d at 783. We reject such testimony only when its
"subject . . . is well within the bounds of a jury's ordinary
experience" and so it "has little probative value" but "might
unduly influence the jury's own assessment of the inference that
is being urged." Id. at 784.4
Tully's testimony that marijuana trafficking frequently
occurs within the United States from California to the East Coast
was clearly probative of Gordon's guilt in the trafficking and
money laundering scheme the government alleged he was involved
with. Although an average Massachusetts juror might have passing
familiarity with marijuana, in part because of its legalization
under state law, it does not follow that the average juror is
familiar with the specific means by which marijuana is trafficked
illegally. Tully's expert opinion that trafficking schemes such
as the one described by the evidence against Gordon are common
would have helped the jury determine whether Gordon's scheme could
have generated the proceeds described in the money laundering
4 To the extent that Gordon argues that the admission of Tully's testimony violated Rule 403 because the testimony was unfairly prejudicial, this argument fails. Our review of this forfeited argument is for plain error, and we grant substantial deference to the district court's balancing of the testimony's probative value and the risk of unfair prejudice. See United States v. Rodriguez, 525 F.3d 85, 98 (1st Cir. 2008). We find no basis for concluding that the district court made an obvious error in determining that the Rule 403 balancing favored admission of the testimony.
- 24 - charges. The district court's admission of Tully's testimony was
not an abuse of discretion.
Finally, Gordon argues that he is entitled to a judgment
of acquittal on the money laundering counts because no rational
jury could have found him guilty beyond a reasonable doubt. He
argues that there was insufficient evidence that Gordon was
involved in marijuana distribution in Massachusetts, the predicate
crime for the money laundering counts. See United States v.
Carucci, 364 F.3d 339, 344 (1st Cir. 2004) (money laundering
convictions under 18 U.S.C. § 1957 "necessitate proof beyond a
reasonable doubt of the predicate crime"). In particular, he urges
that the evidence that he was selling marijuana in Massachusetts
was "slight." He reasons that, had more of his profits been from
legitimate, rather than illegal, activities, that would have
undermined one or more of the money laundering counts.
Gordon moved for a judgment of acquittal in the district
court, and our review of preserved challenges to the sufficiency
of the evidence is de novo. United States v. Pothier, 919 F.3d
143, 146 (1st Cir. 2019). We view the evidence in the light most
favorable to the government and ask whether a rational factfinder
could find the defendant guilty beyond a reasonable doubt. See
id.
- 25 - The jury heard evidence that Gordon shipped over 300
packages from California to Boston that contained at least 1,000
kilograms of marijuana, which could have sold for $2,500 to $4,500
per pound. It also heard evidence that law enforcement found in
Gordon's house a suitcase and bucket, both containing marijuana.
The jury also heard evidence that Gordon spent money far in excess
of the earnings of Mike's Auto Body on multiple homes and a vehicle
for which he paid in full. This evidence easily gives rise to a
reasonable inference that Gordon shipped marijuana to
Massachusetts so that it could be resold and then received a
portion of the profits. A reasonable jury could have found beyond
a reasonable doubt that Gordon distributed marijuana in
Massachusetts and that his illegal activities were the source of
most of the profits shown in his bank records. His challenge to
the jury's verdict fails.
VI.
Each of Gordon's attacks on his convictions is
meritless. Affirmed.
- 26 -