United States Court of Appeals For the First Circuit
No. 19-2169
UNITED STATES OF AMERICA,
Appellee,
v.
BERNARD LINDSEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Lipez, and Kayatta, Circuit Judges.
Benjamin Brooks, with whom Good Schneider Cormier & Fried was on brief, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.
June 29, 2021 LYNCH, Circuit Judge. State probation officers
discovered a black case containing a variety of illegal narcotics
during a probation compliance check in defendant Bernard Lindsey's
apartment. The police department obtained and executed a warrant
to search his apartment, including the two cellphones found near
Lindsey, for evidence of drug dealing. Based on the evidence
found, Lindsey was charged and convicted of possession with intent
to distribute both cocaine, fentanyl, and methamphetamines.
In the district court, Lindsey challenged the warrant on
the ground that there was no probable cause to search his
cellphones. On appeal he adds an argument that any evidence taken
from the phones must be suppressed because the warrant did not
adequately specify which files on the phones would be searched.
We reject these arguments along with Lindsey's other arguments on
appeal and affirm.
I. Factual Background
In April 2018, Lindsey was living alone in an apartment
in Concord, New Hampshire. On April 16, his parole officer,
Jonathan Boisselle, went to Lindsey's apartment with his partner,
Benjamin Densmore, and two canine investigators to perform an
unannounced home visit. Boisselle approached the apartment
quietly and at the closed door heard movement inside. He knocked
on the door and announced his presence several times. Boisselle
heard a phone go off from inside the apartment but still no one
- 2 - opened the door. After two to three minutes, Lindsey opened the
door and asked the officers to come in. Lindsey said he did not
open the door immediately because he had been having trouble with
his landlord due to bed bugs in the apartment.
Boisselle entered and saw another man, Bryson London,
sitting on a couch near the entrance. He smelled marijuana and
asked Lindsey if he had any illicit substances in the house.
Lindsey denied having marijuana or any other substances. Boisselle
next saw that London had a marijuana pipe between his legs and
that there was a marijuana grinder on the couch. While taking
possession of the grinder and pipe, Boisselle noticed a black case
partially obscured by London's arm and other debris. Boisselle,
believing the case might be a firearms case, immediately opened it
and discovered bags of what appeared to be methamphetamines,
cocaine, heroin, and fentanyl, as well as a scale, plastic bags,
a metal spoon, tin foil and a plastic knife. The drugs were
packaged in Ziploc bags and sandwich bags.
After opening the black case Boisselle and Densmore
placed London and Lindsey under arrest. Boisselle patted Lindsey
down and found a cellphone as well as approximately $3,400 in cash.
Lindsey was employed as a server at the time making about $12 per
hour but said that the money came from his tax return and that he
had the money on his person because he did not believe in banks.
The officers later learned that Lindsey had a bank account. The
- 3 - officers seized both the phone on Lindsey's person and a second
cellphone of the same make and model from the table near Lindsey.1
Boisselle next called the Concord Police Department
("CDP") for assistance. Before the Concord police arrived, New
Hampshire Department of Corrections Investigator Christopher Ward
searched the apartment. On the dresser in the bedroom he found
latex gloves, breathing masks, and a container of what appeared to
be Inositol powder, an over-the-counter substance which is
sometimes used to cut drugs.
Shortly thereafter the CPD obtained a search warrant for
Lindsey's apartment. Officer Brian Womersley's supporting
affidavit stated that Lindsey had an "extensive criminal history"
including "sales/possession of controlled drugs," that a witness
had observed what appeared to be multiple drug sales out of a black
Audi registered to Lindsey just five days earlier, and that four
days earlier CPD officers, after responding to a report of possible
drug activity, saw the black Audi parked in the area where
suspected drug activity had been occurring. The affidavit also
stated that Officer Boisselle had received reports from the
Plymouth Police Department that Lindsey was selling drugs from his
residence.
1 The phones were both LG model MP260s.
- 4 - The warrant application went on to describe the various
drugs and drug paraphernalia which had already been found in the
apartment and that Lindsey had over $3,000 in cash in his pocket.
It then stated that "[t]here were numerous cellphones within the
apartment, and on Lindsey's person. Through [Womersley's]
training and experience drug dealers will utilize several
cellphones to conceal their drug business. They often change
numbers, use 'burner phones' that are prepaid phones that they
just keep changing once the minutes are used." Based on all of
these facts the warrant application stated that "there [was]
probable cause to believe that there [was] evidence of the crime
of Sales of a Controlled Drug/Possession of Controlled Drugs . .
. and that this evidence [was] located [in the places specified in
the warrant]."
"Attachment A" to the warrant application stated the
search would be for "Illicit Drugs," "Drug Paraphernalia," "Items,
Documents, and Records relating to Drug Trafficking," "Items which
are Drug Profits or Evidence of Drug Trafficking Proceeds or to be
used to obtain Drugs," and "Any and All Electronic Devices" in
order to "obtain[] any and all evidence . . . to corroborate
Lindsey's criminal activity." Attachment A also explained that
the "Addendum to Attachment A" would specify how the officers would
search any seized electronic devices. However, someone mistakenly
attached an Addendum which described procedures for searching
- 5 - electronic devices only for investigations into violations of
several child pornography statutes.
In executing the warrant, the officers found tin foil,
a box of Ziploc bags, and a box of sandwich bags in the kitchen.
The Ziploc and sandwich bags were of the same two types in which
the drugs in the black case were packaged.
The government also searched the cellphones found on
Lindsey's person and on the table in his living room. On one of
these phones the government found "selfie" photos of Lindsey, a
text message addressing Lindsey by his middle name, and a number
of text messages from the preceding months suggesting that Lindsey
had been engaged in drug dealing.2
The police also found a series of text messages between
Lindsey and "Brysin" -- a misspelling of London's first name --
from the week preceding Lindsey's arrest. On April 9, 2018,
Lindsey received a text message from another person with the phone
number of someone named "Bryson." Lindsey saved the number under
"Brysin." On April 11, Bryson texted Lindsey "Prices bro."
2 For example, on February 6, 2018, Lindsey received a text message that said "Hey did you still want to get some vyvanse? I filled my script..i was thinking about doing a trade if you're interested?" Another text from the same number said "Hey can you find me a half g today?" On March 19, 2018, someone texted Lindsey asking him if he could "cook [them] something to eat," which a law enforcement witness testified was slang for providing drugs. On March 22, 2018, someone named "Kahla" asked Lindsey if he could provide "another half today."
- 6 - Lindsey asked him to call him on another cellphone number. That
cellphone number was the number of the other phone seized in
Lindsey's apartment. On the day of Lindsey's arrest, Bryson texted
Lindsey at 9:33 AM asking if Lindsey could pick him up. Lindsey
agreed and Bryson responded "Can you bring the whites with you
please?" Officers later testified that "whites" is slang for
cocaine.
II. Procedural History
Lindsey was indicted on one count of Possession with
Intent to Distribute Cocaine and Fentanyl under 21 U.S.C
§§ 841(a)(1) and (b)(1)(C) and one count of Possession with Intent
to Distribute Five Grams or More of Methamphetamine under 21 U.S.C.
§§ 841(a)(1) and (b)(viii).
On January 2, 2019, Lindsey filed a motion to suppress
the evidence seized from the searches of the two cellphones on the
grounds that there was not a sufficient "nexus" between the
cellphones and the drug trafficking offense to conclude that there
was a "'fair probability that contraband or evidence of a crime
[would] be found' within the cellphones." The government responded
that the facts in the warrant provided a "substantial basis" for
finding probable cause.
- 7 - The district court heard argument on the motion on
January 30, 2019.3 The district court denied the motion to suppress
"for the reasons set forth by the government."
After a two-day jury trial on April 16 and 17, 2019, the
jury found Lindsey guilty on both counts. At trial the government
introduced, over Lindsey's objection, a number of text messages
taken from one of the cellphones which indicated that Lindsey had
been selling drugs in the months before his arrest. Lindsey
objected on the grounds that evidence of previous drug dealing was
impermissible propensity evidence under Federal Rule of Evidence
404(b). The court overruled these Rule 404(b) objections, stating
I think the cases seem pretty clear to me that in cases such as this where intent is the real focus of the case, that prior similar conduct is particularly relevant, has special relevance, and particular relevance to motive, intent to distribute, knowledge. Secondarily, of course, it provides background, completes
3 In discussing the scope of Lindsey's argument, the district court stated that Lindsey had "kind of an interesting hint of an argument" about whether the searches were overbroad in allowing searches of the entirety of both cellphones rather than only "communications, text messages, phone logs, [and] emails" but that the issue was not raised. Lindsey's lawyer also raised the fact that the warrant application had included an attachment about searching electronic devices in child pornography cases rather than drug cases. The district court also asked several questions of the government to ensure the issue of whether there was an "overly broad search [which] produced evidence of other crimes or other offenses that [the government was] then going to pursue based on this search" was not presented in this case. The government confirmed that issue was not presented and it had no intention of using the cell phone evidence for that purpose.
- 8 - the narrative that the government's attempting . . . to prove.
The district court gave a limiting instruction to the jury stating
that
text messages suggesting that the defendant previously engaged in conduct similar to that charged in this case . . . may not be used to prove the defendant's character traits in order to argue or show that on a particular occasion the defendant acted in accordance with that character. . . . You may consider that evidence solely for the limited purpose of deciding whether the defendant had the state of mind or intent to distribute necessary to commit the crimes charged in the indictment. (Emphasis added.)
Lindsey also objected, without specifying on what
grounds, to the prosecution's asking Officer Boisselle what
prompted his visit to Lindsey's apartment and to the admission of
the text message from Lindsey's girlfriend which addressed Lindsey
by name and was used to prove ownership of the phone.4 The district
court did not rule on the first objection and overruled the second
objection.
Twelve days after the verdict issued, on April 29, 2019,
Lindsey filed a motion for judgment of acquittal under Federal
Rule of Criminal Procedure 29, or in the alternative, for a new
trial under Federal Rule of Criminal Procedure 33. Lindsey argued
that the evidence was insufficient to sustain the jury verdict
4 The text message appeared to be part of an interpersonal conflict between Lindsey and his girlfriend.
- 9 - because the evidence did not show that the black case containing
the drugs and drug paraphernalia belonged to Lindsey rather than
to London or that Lindsey knew the black case contained drugs and
drug paraphernalia. The district court denied the motion on
October 31, 2019, reasoning that there was adequate evidence for
the jury to conclude that Lindsey was engaged in drug trafficking,
that London was merely a customer, and that the black case belonged
to Lindsey.
On November 7, 2019, the district court sentenced
Lindsey to 80 months' imprisonment on both counts, to be served
concurrently. This timely appeal followed.
III. Analysis
Lindsey makes several arguments on appeal. We address
them in turn.
A. The Motion to Suppress
Lindsey's lead argument is that the trial court erred in
denying his motion to suppress any evidence recovered from the
cellphones. Lindsey argues both that the warrant application
failed to demonstrate a sufficient nexus between the suspected
drug dealing and the cellphones and that the warrant was overly
broad and failed to meet the particularity requirements of the
Fourth Amendment.
In reviewing a motion to suppress, we review legal issues
de novo and factual findings for clear error. United States v.
- 10 - Mumme, 985 F.3d 25, 35 (1st Cir. 2021). We review a determination
of probable cause de novo and look only to the "'facts and
supported opinions' set out within the four corners of the
affidavit." United States v. Austin, 991 F.3d 51, 55 (1st Cir.
2021) (quoting United States v. Joubert, 778 F.3d 247, 252 (1st
Cir. 2015)).
1. The Nexus Requirement
The Fourth Amendment states that "no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized." U.S. Const. amend. IV. "A
warrant application must demonstrate probable cause to believe
that (1) a crime has been committed -- the 'commission' element,
and (2) enumerated evidence of the offense will be found at the
place searched -- the . . . 'nexus' element." United States v.
Dixon, 787 F.3d 55, 59 (1st Cir. 2015) (quoting United States v.
Feliz, 182 F.3d 82, 86 (1st Cir. 1999)). As to the nexus
requirement, a court need only determine that there is a "'fair
probability' -- not certainty -- that evidence of a crime will be
found in a particular location" based on the totality of the
circumstances. Id. at 60. The nexus between the alleged crime
and place to be searched may be "inferred from the type of crime,
the nature of the items sought, . . . and normal inferences as to
where a criminal would hide [evidence of a crime]." United States
- 11 - v. Rodrigue, 560 F.3d 29, 33 (1st Cir. 2009) (alteration in
original) (quoting United States v. Ribeiro, 397 F.3d 43, 49 (1st
Cir. 2005)).
Lindsey argues that there was no probable cause to
believe there was evidence of drug dealing on the cellphones
because the affidavit offered "no direct evidence" that the phones
would contain evidence of any drug dealing and the "indirect"
evidence was not strong enough to create a fair inference that
there would be evidence of drug dealing on the cellphones. We
disagree. There was substantial evidence presented in the warrant
application and supporting affidavit that Lindsey had been engaged
in drug dealing and that he had delivered drugs in his car to
various locations. The affidavit also explained that Lindsey had
more than one cellphone and that it is common for drug dealers to
use multiple cellphones to conceal their drug business. This was
enough to support a fair inference that the cellphones would
contain evidence of drug dealing. See United States v. Adams, 971
F.3d 22, 32-33 (1st Cir. 2020) (explaining that presence of
multiple cellphones combined with other evidence of drug dealing
was sufficient to show probable cause to search five cellphones
found in defendant's car); see also United States v. Hernandez-
Mieses, 931 F.3d 134, 140-41 (1st Cir. 2019) (holding that district
court did not err in concluding that "plain view" doctrine allowed
- 12 - officers to seize cash, four cellphones, and gun found in kitchen
because they were "common tools" used in drug dealing).
Lindsey argues that ruling against him will "advance[]
a rule that automatically permits the search of any cellphone whose
owner has been engaged in drug activity, even when there is no
specific evidence that the phone was used to transact any illicit
business, so long as the affidavit includes a generalized statement
that drug dealers often use cellphones to conduct their business."5
Contrary to Lindsey's argument, the warrant was not premised solely
on the fact that Lindsey "engaged in drug activity." The warrant
application stated that Lindsey had multiple cellphones and that
using multiple phones is a common tactic used by drug dealers to
conceal their drug business. Whether probable cause would have
5 In making this argument Lindsey relies on United States v. Roman, 942 F.3d 43 (1st Cir. 2019), in which this court held that the district court did not err in concluding that the government's statement that drug dealers often store evidence of drug crimes in the home, without additional evidence that drugs might be found in the defendant's home, did not provide probable cause for a warrant to search the home. Id. at 50-52. Roman is entirely distinguishable. In Roman, the court held that there was an insufficient nexus between the alleged drug dealing activity and Roman's home where the warrant application tended to support the inference that any evidence would "more likely . . . be found at the residence or business of another individual," the record did not support the government's assertions that Roman was an established drug dealer, and the warrant application "relie[d] on the testimony of only one informant . . . whose credibility as a source was not established." Id. at 51-54.
- 13 - existed had there been only one phone and no evidence of active
selling, we need not decide.
2. The Particularity Requirement
The Fourth Amendment requires that warrants
"particularly describ[e] the place to be searched, and the persons
or things to be seized." U.S. Const. amend. IV. The purpose of
the particularity requirement "is to prevent wide-ranging general
searches by the police." United States v. Moss, 936 F.3d 52, 58
(1st Cir. 2019) (quoting United States v. Bonner, 808 F.2d 864,
866 (1st Cir. 1986)). "The particularity requirement demands that
a valid warrant: (1) must supply enough information to guide and
control the executing agent's judgment in selecting where to search
and what to seize, and (2) cannot be too broad in the sense that
it includes items that should not be seized." United States v.
Kuc, 737 F.3d 129, 133 (1st Cir. 2013) (citing United States v.
Upham, 168 F.3d 532, 535 (1st Cir. 1999)).
The government argues that Lindsey waived the
particularity argument by failing to raise it in the district
court. Lindsey contends that he did raise the argument both in
his written motion to suppress and during the hearing on his
motion. We agree with the government that Lindsey failed to
preserve this argument and so under Federal Rule of Criminal
Procedure Rule 12(b)(3) and (c)(3) the issue cannot be raised on
- 14 - appeal absent a showing of good cause. Lindsey makes no attempt
to show good cause for his failure to preserve this issue.
In general, legal arguments are preserved only when
"raised squarely" in the district court. United States v. Peake,
874 F.3d 65, 72 (1st Cir. 2017) (quoting Teamsters, Chauffeurs,
Warehousemen & Helpers Union, Loc. No. 59 v. Superline Transp.
Co., 953 F.2d 17, 21 (1st Cir. 1992)). "This rule 'requires
litigants to spell out their legal theories face-up and squarely
in the trial court; if a claim is "merely insinuated" rather than
"actually articulated," that claim ordinarily is deemed
unpreserved for purposes of appellate review.'" Mancini v. City
of Providence ex rel. Lombardi, 909 F.3d 32, 46 (1st Cir. 2018)
(quoting Iverson v. City of Bos., 452 F.3d 94, 102 (1st Cir.
2006)). Unpreserved legal arguments as to motions to suppress are
unreviewable except upon a showing of good cause. Fed. R. Crim.
P. 12(c)(3); United States v. Centeno-González, 989 F.3d 36, 48
(1st Cir. 2021); United States v. Crooker, 688 F.3d 1, 10 (1st
Cir. 2012) ("There is the potential for both unfairness to the
government and needless inefficiency in the trial process if
defendants are not required, at the risk of waiver, to raise all
of their grounds in pursuing a motion to suppress.").6
6 Under First Circuit precedent Lindsey is not entitled to any form of review on this point. See Centeno-González, 989 F.3d at 48. But we note that there is a circuit split as to whether under Federal Rule of Criminal Procedure 12 defendants may still
- 15 - Lindsey did not raise any particularity argument in his
motion to suppress. He made only a nexus argument, stating that
"[t]he totality of the circumstances . . . failed to supply
probable cause" "because [the warrant did] not offer any reason
why in these circumstances, these particular cellphones would hold
any information pertinent to a drug transaction." The statement
in Lindsey's motion to suppress that the warrant application failed
to "describe what evidence [the officers] expected to find in the
phones which would pertain to the distribution of controlled
substances," unaccompanied by any mention of the particularity
requirement, was not enough to raise or preserve the issue.
Nor was Lindsey's current argument squarely raised
during the district court's hearing on the motion. Despite the
district court's inquiry about exactly what the argument was,
defense counsel never articulated the objection, now made on
appeal, that the warrant was inherently deficient and no evidence
seized pursuant to it was admissible because the warrant "failed
to identify what items could be seized or viewed, thus violating
the particularity requirement."
receive plain error review for arguments not made before the district court. Compare, e.g., United States v. Bowline, 917 F.3d 1227, 1229-38 (10th Cir. 2019), United States v. Daniels, 803 F.3d 335, 351-52 (7th Cir. 2015), and United States v. Anderson, 783 F.3d 727, 741 (8th Cir. 2015), with United States v. Sperrazza, 804 F.3d 1113, 1118-21 (11th Cir. 2015), United States v. Vazquez, 899 F.3d 363, 372-73 (5th Cir. 2018), and United States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015).
- 16 - Further demonstrating that the particularity argument
was not squarely raised, no record was developed as to whether the
warrant could have been narrowed or provided sufficient guidance
to "control the agent's judgment in selecting what to take."
United States v. Tiem Trinh, 665 F.3d 1, 15 (1st Cir. 2011)
(quoting Upham, 168 F.3d at 535); see also Crooker, 688 F.3d at 10
(explaining the "unfairness" to the government when an untimely
argument inhibits "full development of the factual record"). The
record does not comprehensively explain how information is stored
on modern cellphones or the ways in which the government can access
that data without roaming through that phone. Nor did Lindsey
request an evidentiary hearing on the motion. The argument is
waived, Lindsey has not shown good cause under Rule 12 to consider
the argument on appeal, and he is not entitled to plain error
review.
B. Sufficiency of the Evidence
Lindsey argues that the evidence at trial was
insufficient to show that he "knowingly and intentionally
possessed . . . a controlled substance with the specific intent to
distribute" because there was "no evidence" to suggest that the
black case containing drugs and drug packaging belonged to Lindsey
rather than to London. He also asserts that even if there was
evidence that Lindsey had just sold cocaine to London, that "does
- 17 - not make Mr. Lindsey guilty of also possessing the fentanyl or the
methamphetamine in the case."
We review de novo the district court's denial of a
defendant's Rule 29 motion for a judgment of acquittal. United
States v. Guzmán-Montañez, 756 F.3d 1, 8 (1st Cir. 2014). "When
evaluating the sufficiency of evidence, 'we draw the facts and all
reasonable inferences therefrom in the light most agreeable to the
jury verdict.'" Id. (quoting United States v. Williams, 717 F.3d
35, 37-38 (1st Cir. 2013)). The inquiry is whether "any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt," and "[d]efendants challenging
convictions for insufficiency of evidence face an uphill battle on
appeal." United States v. Millán-Machuca, 991 F.3d 7, 17 (1st
Cir. 2021) (alteration in original) (first quoting United States
v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005); and then quoting
United States v. Rodríguez-Martinez, 778 F.3d 367, 371 (1st Cir.
2015)).
To make out a case of possession with intent to
distribute a controlled substance under 21 U.S.C. § 841(a), the
government must show that the defendant "knowingly and
intentionally possessed, either actually or constructively, a
controlled substance with the specific intent to distribute."
United States v. Mendoza-Maisonet, 962 F.3d 1, 12 (1st Cir. 2020)
(alteration in original) (quoting United States v. García-
- 18 - Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007)). Constructive
possession exists when a defendant has "dominion and control over
the area where the contraband was found" and may be established by
circumstantial evidence. Id. (quoting United States v. Padilla-
Galarza, 886 F.3d 1, 5 (1st Cir. 2018)).
The evidence was sufficient for the jury to conclude
that the black case and drugs it contained belonged to Lindsey.
The text message evidence showed that someone named "Brysin" --
who the jury could readily infer was Bryson London -- had asked
Lindsey five days before the arrest about his "[p]rices." And on
the morning of the arrest, "Brysin" asked Lindsey to pick him up
and bring "the whites," which is a commonly used term for cocaine.
Lindsey had $3,643 dollars of cash on his person, which the jury
could fairly infer were drug proceeds. The drugs in the black
case were packaged in the same type of Ziploc and sandwich bags
found elsewhere in Lindsey's apartment. The officers also found
breathing masks, latex gloves, and an over-the-counter powder
commonly used to cut drugs in Lindsey's bedroom. The jury could
conclude beyond a reasonable doubt that Lindsey was selling drugs
to London and that the case, which contained drug-packing materials
and a wide range of drugs in distribution quantities, belonged to
Lindsey rather than to London.
- 19 - C. The Admission of Text Messages Concerning Prior Drug Dealing
Lindsey argues that the trial court erred in admitting
text messages which showed Lindsey engaging in past drug dealing
because the messages were improper propensity evidence.
Federal Rule of Evidence 404(b)(1) forbids the admission
of "[e]vidence of any other crime, wrong, or act . . . to prove a
person's character in order to show that on a particular occasion
the person acted in accordance with the character." However, such
evidence "may be admissible for another purpose, such as proving
motive, opportunity, [or] intent." Fed. R. Evid. 404(b)(2). Under
the two-part test, if the court determines that the proffered prior
act evidence has "'special' relevance, i.e., a non-propensity
relevance," it then must consider whether the evidence should
nevertheless be excluded under Rule 403 because "its probative
value is substantially outweighed by a danger of . . . unfair
prejudice." United States v. Henry, 848 F.3d 1, 8 (1st Cir. 2017)
(first quoting United States v. Hicks, 575 F.3d 130, 142 (1st Cir.
2009); and then quoting Fed. R. Evid. 403). We review the
admission of prior bad acts evidence for abuse of discretion.
United States v. García-Sierra, 994 F.3d 17, 30 (1st Cir. 2021).
The district court did not abuse its discretion in
admitting the text messages solely for the purpose of showing that
Lindsey intended to distribute the drugs in the black case.
Evidence of past drug dealing may be relevant to show that a
- 20 - defendant in possession of drugs intended to sell those drugs.
See id. at 230 (explaining that in cases charging possession with
intent to distribute narcotics "we have 'often upheld the admission
of evidence of prior narcotics involvement to prove knowledge and
intent'" (quoting United States v. Manning, 79 F.3d 212, 217 (1st
Cir. 1996))); Henry, 848 F.3d at 8-9 (collecting cases). In this
case, the admitted text messages were part of a stream of drug
trafficking communications in the months leading up to Lindsey's
arrest, and the more recent messages showed that London was his
customer. The inference to be drawn from the text messages is not
the impermissible propensity one that because Lindsey had
previously sold drugs, he must have had an intent to sell drugs in
April 2018. Rather, the text messages show that Lindsey was
presently in the business of selling drugs, which, in combination
with the fact that Lindsey was found in the vicinity of
distribution-quantity drugs, made it more likely that he intended
to sell those drugs. The district court also twice gave the jury
a limiting instruction to ensure that the text messages were not
considered except to show Lindsey's intent to distribute the drugs
in the black case.
D. The Admission of Other Evidence
Lindsey argues that the admission of Officer Boisselle's
testimony that the purpose of the probation visit was to
investigate "concerns of noncompliance" with the terms of his
- 21 - probation was unduly prejudicial because it "left [the jury] with
the extremely prejudicial impression that officers showed up to
Mr. Lindsey's home looking for drugs, and found exactly what they
were looking for." Lindsey also argues that the admission of a
text message from his girlfriend was unduly prejudicial "to the
extent that [it] suggested that he was an ungrateful domineering
boyfriend."
We review a district court's admission of allegedly
prejudicial evidence under Federal Rule of Evidence 403 for abuse
of discretion, "keeping in mind that '[o]nly rarely and in
extraordinary compelling circumstances will we, from the vista of
a cold appellate record, reverse a district court's on-the-spot
judgement concerning the relative weighing of probative value and
unfair effect.'" United States v. Soto, 799 F.3d 68, 91 (1st Cir.
2015) (alteration in original) (quoting United States v.
Vizcarrondo-Casanova, 763 F.3d 89, 94 (1st Cir. 2014)). Even if
the district court abused its discretion, we reverse only if the
"improperly admitted evidence likely affected the outcome of [the]
trial." United States v. Acevedo-Hernández, 898 F.3d 150, 168
(1st Cir. 2018) (alteration in original) (quoting United States v.
Torres-Galindo, 206 F.3d 136, 141 (1st Cir. 2000)).
As to Officer Boisselle's statement that there were
"concerns of noncompliance with the terms of [Lindsey's]
supervision," there is no basis to conclude that its admission
- 22 - affected the outcome of the trial. Boisselle did not claim that
he suspected Lindsey of violating any particular term of his
probation relevant to this case. Boisselle also testified that he
in fact observed several probation violations upon entering the
apartment, undercutting any argument that mere "concerns of
noncompliance" would have impacted the outcome of the case.
Further, the district court did not abuse its discretion
in admitting the text message from Lindsey's girlfriend. The text
message was relevant to show Lindsey's ownership of the cellphone
and the district court reduced any risk of prejudice by instructing
the jury that "the content of the message is totally irrelevant to
anything you're deciding, so don't consider it for any other
purpose other than it's being offered on the limited purpose of
your considering ownership of the phone." See United States v.
Moon, 802 F.3d 135, 144-45 (1st Cir. 2015) (explaining that
limiting instructions "minimize[] the risk of prejudice").
IV. Conclusion
Affirmed.
-Concurring Opinion Follows-
- 23 - KAYATTA, Circuit Judge, concurring. I write separately
only to express my continued reservations about ongoing reliance
on our holding in United States v. Manning, 79 F.3d 212, 217 (1st
Cir. 1996), that evidence of prior drug distribution is admissible
to prove the element of intent in a later drug distribution case.
See United States v. Henry, 848 F.3d 1, 15 (1st Cir. 2017)
(Kayatta, J., concurring) ("[T]he admission of evidence of a prior
conviction to establish the 'intent' of the defendant in connection
with the offense being tried can become indistinguishable from the
admission of evidence of a prior conviction to prove a propensity
to commit that type of crime.").
The lure of the propensity argument is admittedly
seductive. But propensity is "not rejected because character is
irrelevant; on the contrary, it is said to weigh too much with the
jury and to so overpersuade them as to prejudge one with a bad
general record and deny him a fair opportunity to defend against
a particular charge." Michelson v. United States, 335 U.S. 469,
475–76 (1948) (footnote omitted). And because "[a]lmost any bad
act evidence simultaneously condemns by besmirching character and
by showing one or more of motive, opportunity, [or] intent, . . .
not to mention the other purposes of which this list is meant to
be illustrative," the "list of exceptions in Rule 404(b), if
applied mechanically, would overwhelm the central principle."
United States v. Hall, 858 F.3d 254, 269 (4th Cir. 2017) (emphasis
- 24 - in original) (quoting United States v. Miller, 673 F.3d 688, 696-
97 (7th Cir. 2012)).
The opinion for the court in this case claims to
distinguish the "impermissible propensity" inference (that
"because Lindsey had previously sold drugs, he must have had an
intent to sell drugs in April 2018") from a supposedly permissible
inference (that because "Lindsey was presently in the business of
selling drugs," it was "more likely that he intended to sell [the]
drugs" with which he was found). I fail to see the relevant
difference, at least as pertains to sales made months and weeks
prior to the charged sale. With either formulation, the path of
reasoning runs through propensity: His prior sales evidence a
propensity making it more likely that he was planning to sell drugs
on this occasion. See United States v. Davis, 726 F.3d 434, 442
(3d Cir. 2013) ("[T]he government must explain how [the evidence]
fits into a chain of inferences -- a chain that connects the
evidence to a proper purpose, no link of which is a forbidden
propensity inference.")
Nevertheless, for two reasons I agree that the admission
of the text messages does not call for upsetting the conviction:
First, the text messages exchanged with London on the day of the
arrest were properly admissible because they show London and
Lindsey arranging the intended sale that is the subject of this
case. They thus present no "uncharged conduct" issue. Second,
- 25 - that evidence and the other evidence seized at the scene of the
arrest make it overwhelmingly clear that Lindsey possessed the
seized drugs with the intent to sell them. Therefore, any error
in admitting evidence of other uncharged sales was harmless. And
I otherwise agree with my colleagues' cogent disposition of the
other issues on appeal.
- 26 -