United States v. Melendez

• Court: Court of Appeals for the First Circuit
• Decided: August 23, 2024
• Docket: 23-1256
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1807

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN RODRIGUEZ, a/k/a Mula, a/k/a Mula Monopoly,

Defendant, Appellant.

Nos. 23-1255 23-1256

JUNITO MELENDEZ, t/n Junior Melendez,

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

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Kayatta, Circuit Judges. Rory A. McNamara, with whom Drake Law LLC was on brief, for defendant Rodriguez. Jonathan Shapiro, with whom Mia Teitelbaum and Shapiro & Teitelbaum LLP were on brief, for defendant Melendez. Karen L. Eisenstadt, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for the United States.

August 23, 2024 SELYA, Circuit Judge. A jury in the United States

District Court for the District of Massachusetts convicted

defendants-appellants Juan Rodriguez and Junito Melendez of, inter

alia, conspiracy to distribute and possess with intent to

distribute more than 500 grams of cocaine. The defendants claim

that the trial was plagued by erroneous evidentiary rulings and

defective jury instructions. In addition, Melendez claims that

his sentence rested on incorrect guideline calculations.

Discerning no error, we affirm.

I

We briefly rehearse the relevant facts and travel of the

case. Because these appeals do not present challenges to the

sufficiency of the evidence but, rather, deal with other claims of

error, we rehearse "the facts in a 'balanced' manner in which we

'objectively view the evidence of record.'" United States v.

Amador-Huggins, 799 F.3d 124, 127 (1st Cir. 2015) (quoting United

States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015)); see

Gray v. Genlyte Group, Inc., 289 F.3d 128, 131 (1st Cir. 2002)

(explaining that, for issues such as admissibility of evidence and

appropriateness of jury instructions, "evidence offered by either

side or both may be pertinent").1

1Some of our older cases suggest that — even in the absence of a sufficiency challenge — we should rehearse the facts in the light most favorable to the verdict. See United States v. Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014). Having

- 3 - A

Melendez and Rodriguez were convicted of working with

several associates to carry out a scheme to purchase and distribute

large quantities of cocaine in Massachusetts and New Hampshire.

The government's case against them was as follows. Melendez was

the front man of the enterprise: he interacted with customers and

suppliers while Rodriguez managed the back-end operations from his

residence in Worcester, Massachusetts. The two men acquired at

least some of the trafficked cocaine from Angel Cordova (whom the

government believed to be their primary supplier). They then

cooked portions of the acquired cocaine into crack cocaine, which

they sold along with the rest of the powder cocaine. Their

principal customer was Carlos Richards (Lito) who lived in

Manchester, New Hampshire. To transport the contraband from

Worcester to Manchester, the defendants sometimes employed

couriers.

reexamined those decisions in light of the weight of modern authority, we abrogate them. In doing so, we have followed the procedure described in cases such as Trailer Marine Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 9 n.5 (1st Cir. 1992), Gallagher v. Wilton Enterprises, Inc., 962 F.2d 120, 124 n.4 (1st Cir. 1992), and Carpenters Local Union No. 26 v. United States Fidelity & Guaranty Co., 215 F.3d 136, 138 n.1 (1st Cir. 2000). The panel opinion in this case was circulated to all active judges of the court prior to publication. None interposed an objection to our proposed course of action. We caution, however, that the use of this informal procedure does not convert this opinion into an opinion en banc, nor does it preclude a suggestion of rehearing en banc on any issue in this case.

- 4 - The Bureau of Alcohol, Tobacco, Firearms and Explosives

(ATF) began focusing on the defendants in the summer of 2018 after

local police in Worcester requested assistance with an ongoing

probe. As relevant here, the ATF took custody of Melendez's iPhone

in December of 2018 while he was detained on a charge unrelated to

these appeals. The ATF secured a search warrant for the iPhone's

contents and subsequently obtained three authorizations for

wiretaps of the iPhone. Based on information that was recovered

from the iPhone (such as photographs and notes) and conversations

that were recorded by means of the wiretaps, the ATF and local

police tracked the defendants' drug operations over the next few

months. We briefly recount these drug transactions as they pertain

to the issues on appeal.

When the authorities arrested the defendants, the

charges that they lodged stemmed from a series of seemingly

scattered drug transactions that occurred over a period of

approximately three months. Our odyssey along this trail begins

on April 2, 2019, when a local police officer in Worcester observed

one of Melendez's associates, Lujan Burgos, enter Melendez's

residence and depart less than an hour later. Burgos was

subsequently stopped and arrested for driving on a suspended

license. A search of his person incident to his arrest yielded

twenty-two grams of crack cocaine, which the government suspected

- 5 - Burgos had procured from Melendez during his brief visit to

Melendez's residence.

The next day — April 3 — Rodriguez called Melendez for

assistance in bailing out Burgos. Melendez responded that he would

"make some moves" and that he should be able to help the next day

— a response that hinted that Melendez would receive proceeds from

a later cocaine sale. One of the enterprise's couriers, Antoine

Mack, was to deliver cocaine to Richards in Manchester that

afternoon. Local police observed Mack first at a dwelling in

Worcester (later referred to as "Mula's spot") at which Melendez's

vehicle was parked. Mack spent only a short time in the Worcester

residence, after which tailing ATF agents lost sight of him. The

government suspected that it had just witnessed Mack pick up a

cocaine shipment from Melendez to transport to Richards in

Manchester.

Mack reappeared at Richards's residence, where he made

only a quick stop and departed with a bag in hand. A later-

discovered video showed Mack in his vehicle in Manchester with

what looked like a large sum of cash in his lap. Mack then returned

to Massachusetts and made another pilgrimage to Melendez's

residence. After these events had transpired, Melendez told

Rodriguez that he had secured the necessary funds to help bail out

Burgos. From the government's perspective, this chain of events

- 6 - indicated that Mack had successfully delivered the cocaine to

Richards and returned the proceeds to Melendez.

We fast-forward to April 12. On that date, Melendez

telephoned Cordova, who reported that he "got five" — a statement

which the ATF case agent understood to mean 500 grams of cocaine.

Several additional telephone calls ensued during which the men

discussed a meeting location for the transfer of the cocaine.

Following these calls, Worcester police observed a "possible

Hispanic male" leave the meeting location with what looked like a

food container in a plastic bag. The government argued that police

had just witnessed Melendez purchase cocaine from Cordova.

This brings us to April 22. On that date, Melendez

instructed Mack to go to Mula's spot, which the government

understood as a direction to pick up cocaine and deliver it to

Richards in Manchester. Mack's trip, though, was interrupted by

a police officer who stopped him on an unrelated charge and had

his vehicle towed. The officer recovered a plastic bag during the

stop, but it did not contain contraband.

Mack and Melendez regrouped and again attempted to

execute the transaction. Attuned to their communications through

the wiretaps, the ATF sent an agent to conduct surveillance. The

surveilling agent observed an individual drive to Richards's

residence in Manchester. The surveilling agent suspected that the

purpose of this trip was to deliver cocaine. But because it was

- 7 - dark and raining, the agent could not identify the messenger. Even

so, after tailing the messenger's vehicle to a gas station on its

return journey, the agent was able to identify Mack as the driver.

The agent followed the vehicle to a house in Worcester and watched

Mack enter the house with a bag in hand. It could reasonably be

inferred from this observation that Mack returned with the proceeds

from his most recent cocaine delivery.

Later that week (on April 25), Melendez informed Cordova

that he needed "seven or eight," which the ATF case agent

interpreted to mean 700 or 800 grams of cocaine. On April 27,

after further telephone exchanges, Melendez and Cordova were seen

driving together toward a Massachusetts residence. On May 6,

Cordova telephoned Melendez and — according to the ATF case agent's

interpretation — agreed that Cordova would sell Melendez 500 grams

of cocaine. ATF agents then observed Cordova, another courier

(Kevin Jean), and a third unidentified person meet at Mula's spot.

The following day, Melendez telephoned Richards. The

case agent — interpreting coded language — testified that this

call was intended to make plans to deliver 400 grams of cocaine to

Richards in New Hampshire. Subsequent communications between

Melendez and Jean supported an inference that Jean met with

Richards that afternoon. On May 16, the case agent — again

interpreting coded language — concluded that Melendez intended to

procure at least 500 grams of cocaine from Cordova. This

- 8 - conclusion was based on the case agent's review of a telephone

call between Melendez and Cordova, which reflected that Melendez

told Cordova that he would buy "[p]robably more, but five minimum."

A day later, Cordova communicated to Melendez that he had "531 in

one piece," a statement that the case agent interpreted to mean

531 grams of cocaine in one "brick." Melendez directed Cordova to

come to his residence, where video footage shows the two men

meeting for about three minutes.

On May 23 and 24, Melendez and Cordova discussed the

possibility of Cordova again supplying Melendez with cocaine.

These discussions proceeded notwithstanding the fact that Melendez

was displeased with the quality of the product that he had received

earlier. On May 24, Melendez ordered "three" from Cordova, which

the case agent interpreted to mean 300 grams of cocaine. This

order was placed after Cordova advised Melendez that he had secured

a different source of supply for the drugs.

Melendez and Cordova subsequently were seen inside a

Massachusetts residence, after which Melendez told Rodriguez that

he could have "1 or 2." Following a telephone call with Melendez,

Richards arrived at that location (about thirty minutes after

Cordova had left) and then departed with a bag in hand. Shortly

thereafter, two officers stopped Richards and found about 200 grams

of cocaine, about 105 grams of crack cocaine, and many "white

- 9 - papers" in his possession. The officers confiscated the contraband

but did not arrest Richards.

On June 5, ATF agents executed search warrants at

Melendez's and Rodriguez's homes and arrested both men. In July,

a federal grand jury sitting in the District of Massachusetts

charged the defendants with one count of conspiracy to distribute

and to possess with intent to distribute cocaine. See 21 U.S.C.

§ 846; see also id. § 841(a)(1). The indictment further charged

that 500 grams or more of cocaine was reasonably foreseeable and

attributable to Melendez and that he had a prior conviction for a

serious drug felony, see 21 U.S.C. § 802(57) — circumstances that

warranted enhanced penalties under 21 U.S.C. § 841(b)(1)(B)(ii).

The grand jury separately charged Melendez with one count of

conspiracy to interfere with commerce by robbery (Hobbs Act

robbery). See 18 U.S.C. § 1951.

B

After a thirteen-day trial at which the government

presented evidence of these events, the jury found both Melendez

and Rodriguez guilty of conspiracy to distribute cocaine and

conspiracy to possess with intent to distribute 500 grams or more

of cocaine. See 21 U.S.C. § 846. The jury separately found that

Melendez had distributed 500 grams or more of cocaine under

circumstances in which such distribution was reasonably

foreseeable, after he had previously been convicted of a serious

- 10 - drug felony. See 21 U.S.C. § 841(b)(1)(B)(ii). Finally, Melendez

pleaded guilty to conspiracy to commit Hobbs Act robbery. See 18

U.S.C. § 1951.

The district court sentenced Rodriguez to a 52-month

term of immurement for the drug conspiracy. The court sentenced

Melendez to concurrent terms of imprisonment of 156 months for his

two conspiracy convictions. These timely appeals followed.

II

We start with Melendez's challenge to the search warrant

and wiretaps issued for his iPhone. The wiretaps, in particular,

yielded many of the communications deployed against Melendez at

trial.

A

Some additional background is useful. While Melendez

was in police custody on an unrelated matter, the ATF confiscated

his phone and sought a search warrant for its contents. The

government supported the warrant application with an affidavit

from the ATF case agent asserting that there was probable cause to

believe that Melendez committed drug and firearm trafficking

offenses for which the phone's contents would provide evidence.

The affidavit identified two confidential sources (both of whom

have prior convictions and were cooperating in return for potential

leniency on pending criminal charges).

- 11 - The first source advised that Melendez was the leader of

the Massachusetts section of the Vice Lords gang and possessed and

distributed firearms. The second source substantiated the

allegations of Melendez's role in the Vice Lords and his possession

and distribution of firearms. That source also disclosed that

Melendez was involved in the distribution of kilograms of crack

and powder cocaine and that he sanctioned the use of violence to

protect his drug-distribution activities.

A magistrate judge issued a search warrant, and the

government collected a mass of information on which it relied for

a later wiretap application. In support of the wiretap

application, the case agent explained that law enforcement was

investigating Melendez's firearm and drug-distribution operations.

The case agent noted Melendez's prior conviction, his apparent

involvement in various criminal activities, and the statements

from the two confidential sources. In addition, the case agent

noted statements from two more confidential sources. The third

source substantiated Melendez's involvement in the Vice Lords gang

and his firearms dealings, and the fourth source was identified as

a potential cooperator. The court granted the application. Two

other wiretap applications, which relied in part on evidence from

the first wiretap, were also granted.

Melendez filed motions to suppress both the evidence

obtained from the iPhone and the communications intercepted

- 12 - through the wiretap. The district court denied these motions.

Melendez now challenges these denials.

We begin by rehearsing standards of review applicable to

the denial of motions to suppress evidence from search warrants

and wiretaps.

When presented with a challenge to the denial of a motion

to suppress, "we examine the district court's 'factual findings

for clear error and its legal conclusions, including its ultimate

constitutional determinations, de novo.'" United States v.

Sheehan, 70 F.4th 36, 43 (1st Cir. 2023) (quoting United States v.

Moss, 936 F.3d 52, 58 (1st Cir. 2019)). Where, as here, the

principal "basis for a probable cause determination is information

provided by a confidential informant, the affidavit must provide

some information from which a magistrate can credit the informant's

credibility." United States v. Gifford, 727 F.3d 92, 99 (1st Cir.

2013). Put bluntly, "the probability of a lying or inaccurate

informer [must have] been sufficiently reduced." United States v.

Greenburg, 410 F.3d 63, 69 (1st Cir. 2005). To assess an

informant's credibility, we look to factors such as:

(1) whether the affidavit establishes the probable veracity and basis of knowledge of persons supplying hearsay information; (2) whether an informant's statements reflect first-hand knowledge; (3) whether some or all

- 13 - of the informant's factual statements were corroborated wherever reasonable or practicable (e.g., through police surveillance); and (4) whether a law enforcement affiant assessed, from his professional standpoint, experience, and expertise, the probable significance of the informant's provided information.

Gifford, 727 F.3d at 99.

Congress has instructed that law enforcement must make

several specific showings before intercepting wire, oral, or

electronic communications. See 18 U.S.C. § 2518(3). A wiretap

application must show probable cause to believe "that an

individual is committing, has committed, or is about to commit a

[qualifying] offense." Id. § 2518(3)(a). So, too, the

application must show probable cause to believe that the

intercepted communications will yield information about the

offense and "that either the individual or the offense is

sufficiently connected to the means of communication that [the

government] seeks to surveil." United States v. Encarnacion, 26

F.4th 490, 497 (1st Cir. 2022); see 18 U.S.C. § 2518(3)(b), (d).

What is more, the application must show 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." 18 U.S.C. § 2518(3)(c). In short, the wiretap must

be reasonably necessary to the investigation. See Encarnacion, 26

- 14 - F.4th at 497. We will affirm a wiretap if "the application was at

least 'minimally adequate' to support the authorization of the

wiretap." Id. (quoting United States v. Gordon, 871 F.3d 35, 43

(1st Cir. 2017)). So long as the application clears this bar, a

motion to suppress the fruits of the wiretap will be denied. See

Gordon, 871 F.3d at 46.

C

We separately address the iPhone search and the

wiretaps.

Melendez contends that the search of his iPhone lacked

probable cause because the supporting affidavit from the case agent

(which incorporated the confidential sources' accounts) was not

credible. He says that the case agent failed to provide any

information in support of the sources' credibility. See United

States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002) (explaining

that "[a] mere assertion of reliability without any information

regarding the basis for the officer's belief, such as past tips

leading to arrests," is a minimum showing that "is entitled to

only slight weight" (internal quotations omitted)). He adds,

moreover, that the confidential sources' past criminal convictions

and current quest for leniency undermine their credibility.

Without independent evidence of credibility, his thesis runs,

these sources "had every reason to lie" in exchange for more

- 15 - favorable resolution of their pending criminal charges. He adds

that the information provided came without "any explanation for

the[] basis of knowledge and consisted of conclusory allegations

of criminal conduct devoid of the specificity necessary to

determine whether the information was based on personal knowledge

or hearsay."

These arguments fail because they depend upon

balkanization of the evidence. As a start, the fact that the

confidential sources were cooperating with law enforcement does

not, in and of itself, undermine their credibility. See United

States v. Leonard, 17 F.4th 218, 225 (1st Cir. 2021) (explaining

that, although confidential source "had pending charges at the

time, providing perhaps an incentive to falsify information," this

concern could be eased by offering information that corroborated

the source's account); see also United States v. Vongkaysone, 434

F.3d 68, 74 (1st Cir. 2006) (explaining that, when one becomes an

informant in exchange for potential leniency with pending criminal

charges, "it [is] to his advantage to produce accurate information

to the police so as to qualify for the leniency he [seeks]").

To be sure, a source may overstate his knowledge in the

hope that the government can use what little information he can

provide to make an arrest and, thus, afford him leniency. The

source may even fabricate information, such as in an attempt to

mislead the government in furtherance of the criminal enterprise.

- 16 - See, e.g., United States v. Ramírez-Rivera, 800 F.3d 1, 28 (1st

Cir. 2015), overruled on other grounds by United States v. Leoner-

Aguirre, 939 F.3d 310, 316-17 (1st Cir. 2019); United States v.

Vigeant, 176 F.3d 565, 570 (1st Cir. 1999).

In the case at hand, evidence supporting the veracity of

the sources' information defeats any such theory. Each source

spoke directly to investigators, so if either of them had later

been found to be lying, he would have been exposed to additional

punishment. This provided an incentive for the sources to be

truthful in their accounts. See Barnard, 299 F.3d at 93 ("Unlike

an anonymous tipster, [a cooperating source is] . . . known to the

police and could be held responsible if his assertions prove[]

inaccurate or false."). Additionally, it is noteworthy that the

two separate sources both confirmed essentially the same

information about Melendez's gang affiliation and criminal

activities. This level of consistency furnishes a form of internal

corroboration. See Leonard, 17 F.4th at 226 (noting importance of

"cross-corroboration" among sources).

There is more. To bolster the sources' credibility, the

government discloses additional context as to how the first two

sources acquired their information. Notably, they observed some

of Melendez's criminal activities first-hand. See United States

v. Maglio, 21 F.4th 179, 186 (1st Cir. 2021) (noting that

confidential source's reliability is bolstered if he "personally

- 17 - observed criminal activity"). The first source saw Melendez

possess and/or distribute up to thirty-five firearms. The second

source was in a trailer with Melendez when he saw Melendez cook

crack cocaine. He also explained that Melendez generally had

access to firearms and, on at least one occasion, observed Melendez

in possession of a particular 9mm firearm.

Even when these sources proffered information that was

not based on personal observation, they included extensive details

showing that they "ha[d] a legitimate basis [to] know[]" or that

an uninvolved person could not have "easily know[n]" that

information. United States v. Khounsavanh, 113 F.3d 279, 284 (1st

Cir. 1997). For example, these sources shared the identities of

additional gang members and some of Melendez's firearm straw

purchasers. They also alerted the government to another unreported

shooting. Melendez does not assign clear error to the district

court's reliance on any of these facts — which further undermines

his suggestion that the informants lacked credibility.

Last — but far from least — the government corroborated

the informants' accounts with independent information. The

address of the gang house was confirmed when law enforcement

connected it to an overdose. The authorities confirmed that the

unreported shooting did occur. And the government showed that

Melendez was linked to a couple of the firearm purchases. Once

- 18 - again, Melendez does not assign clear error to the district court's

reliance on any of these facts.

To say more would be to paint the lily. Taking into

consideration "the 'totality of the circumstances' disclosed in

the supporting affidavit[]," we conclude that it showed "a fair

probability that contraband or evidence of a crime [would] be

found" in a search of the phone. Barnard, 299 F.3d at 93 (quoting

United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996)).

Because the iPhone search was lawful, we must reject

Melendez's derivative argument that the wiretaps relied on fruit

of the poisonous iPhone tree. See Utah v. Strieff, 579 U.S. 232,

237 (2016). The evidence in support of the wiretaps is even

stronger because it included a third confidential source who spoke

directly to law enforcement and corroborated the allegations made

by the first two sources. That leaves his contention that the

government failed to satisfy the necessity requirement as to the

wiretap applications. In that regard, our inquiry focuses on

whether "other investigative procedures [were] tried and failed"

or whether the government explained "why [these procedures]

reasonably appear[ed] to be unlikely to succeed if tried or [would]

be too dangerous." United States v. Santana-Dones, 920 F.3d 70,

76 (1st Cir. 2019) (quoting United States v. Nelson-Rodriguez, 319

F.3d 12, 32 (1st Cir. 2003)); see 18 U.S.C. § 2518(1).

- 19 - Melendez argues that the wiretap application did not

"explain why information from recorded phone conversations, text

messages, and controlled drug buys between [the fourth

confidential source] and [Melendez] would not accomplish the goals

of the investigation." This argument lacks force.

The wiretap affidavit offered at least three compelling

reasons for the search. The case agent explained that

sophisticated organizations remain wary of other methods,

particularly confidential informants who try to infiltrate the

organization. The government had tried and failed to introduce

two separate confidential informants into the organization. And

a confidential informant posing as a buyer could learn only so

much about the structure of the conspiracy and the identities of

those involved. Consequently, we hold that the district court did

not err in finding that the government satisfied the necessity

requirement by "offer[ing] specific and reasonable explanations

why" other investigative techniques "would have been unproductive,

too dangerous, or insufficient to achieve its investigative

goals." Encarnacion, 26 F.4th at 501. And because the court

supportably concluded that the government satisfied the statutory

requirements for a wiretap and did not rely on any clearly

erroneous facts, we see no principled basis for overturning its

denial of Melendez's motion to suppress.

- 20 - III

The defendants jointly challenge two categories of

admitted evidence that they deem both improper and unduly

prejudicial under prevailing evidentiary rules.

Prior to trial, Melendez filed a motion in limine,

seeking to exclude any law enforcement interpretation of

statements made during the wiretapped conversations. During

trial, Rodriguez made the same objection. The defendants argued

that any such interpretation would constitute impermissible lay

testimony under Federal Rule of Evidence 701. See Fed. R. Evid.

701. The district court reserved decision. At trial, however,

the court denied the motion as to some testimony. The defendants

now appeal.

A few additional facts help to provide useful context.

The government's principal witness at trial was the ATF case agent,

who relied heavily on experience gained from his work over a decade

and a half in law enforcement. This work included extensive

experience in drug investigations. As the lead agent in this

investigation, he reviewed numerous text messages and telephone

calls that had been intercepted under the wiretap. Although he

was never designated as an expert witness, the court permitted him

to offer his opinion on the meaning of several obscure statements

- 21 - gleaned from these text messages and telephone calls. The

defendants assign error to the admission of this testimony.

We review a preserved objection to the district court's

admission or exclusion of evidence for abuse of discretion. See

United States v. Kilmartin, 944 F.3d 315, 335 (1st Cir. 2019). A

discretionary decision "cannot be set aside by a reviewing court

unless it has a definite and firm conviction that the court below

committed a clear error of judgment in the conclusion it reached

upon a weighing of the relevant factors." Id. (quoting In re

Josephson, 218 F.2d 174, 182 (1st Cir. 1954)).

Withal, abuse of discretion is not a monolithic

standard. See United States v. Padilla-Galarza, 990 F.3d 60, 73

(1st Cir. 2021). It "encompasses 'de novo review of abstract

questions of law, clear error review of findings of fact, and

deferential review of judgment calls.'" Id. (quoting United States

v. Lewis, 517 F.3d 20, 24 (1st Cir. 2008)).

Federal Rule of Evidence 701 requires that opinion

testimony from a witness who is not testifying as an expert be

"rationally based on the witness's perception"; "helpful to

clearly understanding the witness's testimony or to determining a

fact in issue"; and "not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702." Fed. R. Evid.

701. "Application of Rule 701 in the drug-trafficking context is

- 22 - not novel: 'we have long held that government witnesses with

experience in drug investigations may explain the drug trade and

translate coded language' for factfinders through lay opinion

testimony." United States v. Dunston, 851 F.3d 91, 96 (1st Cir.

2017) (quoting United States v. Rosado-Pérez, 605 F.3d 48, 56 (1st

Cir. 2010)); accord United States v. Hoffman, 832 F.2d 1299, 1310

(1st Cir. 1987) (holding that one who is experienced in the field

can "interpret[] . . . codes and jargon used in the drug trade"

under Rule 702). To comply with the constraints of Rule 701, "such

interpretive testimony must be anchored in the witness's personal

experience in the field . . . and his experience-based

understanding of the meaning of the terms used." Dunston, 851

F.3d at 97. Of course, such a law enforcement officer must limit

his interpretation to language that is "peculiar to the[]

defendants" in the particular case and ground his interpretation

"largely on [his] immersion in the details of [the relevant]

investigation." United States v. Albertelli, 687 F.3d 439, 446-

47 (1st Cir. 2012).

On appeal, the defendants first attack the case agent's

testimony, "[b]ased on [his] experience in this investigation,"

that "Shit Lito" described transporting cocaine to Lito who lived

in New Hampshire and that "Mula's spot" was 69 Cutler Street in

- 23 - Worcester (where cocaine was distributed).2 (Alterations in

original.) The defendants assert that the case agent was not

"understanding, interpreting, and translating purposefully

confusing drug lingo." United States v. Belanger, 890 F.3d 13, 25

(1st Cir. 2018). To the contrary, they contend that "he was

interpreting perfectly clear communications about a meeting

between [Melendez] and Mack to infer that Mack was going to obtain

cocaine from [Melendez] and deliver it to a person in New

Hampshire, even though Mack's car was stopped and searched on the

way to New Hampshire and no drugs were found."

In this circumstance, it is within the trial court's

discretion to allow a law enforcement officer to provide lay

opinion testimony when he can — based on his experience with drug

investigations and his involvement in the current case — "explain

the drug trade and translate coded language." Dunston, 851 F.3d

at 96 (quoting Rosado-Pérez, 605 F.3d at 56). When the witness

2 Because neither defendant objected to all the testimony that we discuss below, some aspects of their challenges have not been properly preserved and, thus, invite plain error review. See United States v. Belanger, 890 F.3d 13, 27 (1st Cir. 2018) (holding that "individual defendants in a joint criminal trial are required to raise their own objections unless the district court 'specifically states that an objection from one defendant will be considered an objection for all defendants'" (quoting United States v. Leon-Delfis, 203 F.3d 103, 113 (1st Cir. 2000))). But the government "treats these challenges as raised by both [d]efendants" and does not invoke the plain error standard. We follow the government's lead and evaluate the district court's challenged rulings for abuse of discretion.

- 24 - deciphers a coded phrase, that "'interpretation . . . ought to be

explicable' — a standard that typically requires the witness to

point to similar statements surrounding similar events." Id. at

97 (quoting Albertelli, 687 F.3d at 450). Even so, a court must

exclude such testimony when "the witness is no better suited than

the jury to make the judgment at issue." United States v. Vázquez-

Rivera, 665 F.3d 351, 363 (1st Cir. 2011) (quoting United States

v. Meises, 645 F.3d 5, 16 (1st Cir. 2011)).

Here, the district court had a sufficient basis to find

that the case agent's testimony satisfied these standards. The

defendants' contrary contention misunderstands the purport of the

testimony. Because the expressions "Shit Lito" and "Mula's spot"

are unclear to one without inside knowledge of the defendants'

mode of communication, it was within the court's discretion to

allow the experienced case agent to explain that the defendants

used this jargon as shorthand for transporting cocaine and

describing a house owned by Rodriguez's (Mula's) family from which

the defendants facilitated drug distribution. Although no

interpretation was needed to understand that a meeting was

discussed, it was unclear where the meeting was to occur ("Mula's

spot") and what purpose it served ("Shit Lito").

We discern no abuse of discretion in allowing the

government to fill these gaps. The case agent had reviewed

thousands of telephone calls and text messages between the

- 25 - defendants and their co-conspirators and could interpret them with

the benefit of many years of immersion in the drug-trafficking

world. The record supports the district court's conclusion that

he was readily familiar with the defendants' linguistic

preferences and the likely meaning of their jargon. See Belanger,

890 F.3d at 25-26 (permitting lay opinion testimony by officer who

had worked for DEA for about sixteen years, was a case agent on

the matter, had helped "conduct[] physical surveillance," and had

"listen[ed] to the thousands of calls as they came in");

Albertelli, 687 F.3d at 447 (permitting lay opinion testimony by

officer who had investigated matter for years, had become "familiar

with the voices of the major participants," and had studied other

materials recovered from defendants). And the jury stood to

benefit from his specialized knowledge. Accordingly, the

defendants' claim of error fails.

Even so, the case agent's testimony went further by

concluding that the government "believed . . . Mack was going to

obtain cocaine from . . . Melendez at 69 Cutler Street and

transport it to Lito in Manchester, New Hampshire." The defendants

suggest that, by offering this conclusion, the case agent was

inferring guilt from "'the totality of information gathered' in

the agent's investigation." United States v. Agramonte-Quezada,

30 F.4th 1, 19 (1st Cir. 2022) (quoting United States v. García-

Sierra, 994 F.3d 17, 26 (1st Cir. 2021)). This function, they

- 26 - say, is the sole province of the jury. Cf. García-Sierra, 994

F.3d at 26-27 (explaining that "overview testimony" by law

enforcement "'effectively usurp[s] the jury's role as fact-finder'

by suggesting which inferences the jury should draw from the

evidence appropriately before it" (alteration in original)

(quoting Meises, 645 F.3d at 16)).

We reject this suggestion. The case agent offered this

opinion in response to a question about specifically identified

telephone calls that discussed this meeting. He was not cobbling

together scattered evidentiary bricks to construct a "summary

overview" of a broader conspiracy for which this suspected drug

transaction provided evidence. United States v. Pérez-Vásquez, 6

F.4th 180, 199 (1st Cir. 2021). Given the case agent's experience

and the context here, we believe that it was within the trial

court's discretion to allow him to offer an opinion on the meaning

of specific and limited conversations and, thus, to admit the

challenged testimony.3

Although this testimony resembles later testimony to which 3

the court sustained an objection ("[W]e believed that . . . Mack obtained cocaine from 69 Cutler Street and was transporting that cocaine to Manchester, to . . . Richards."), the two situations are not comparable. In the latter situation, the case agent offered the cited opinion in response to a question that asked him to consider a more extensive range of evidence — making it more likely for the jury to regard his proffered testimony as a government-sanctioned summary of the evidence portraying the defendants as guilty of the crimes charged.

- 27 - Nor does the fact that officers did not find cocaine

during a search of Mack's vehicle throw shade on the case agent's

ability to offer interpretive testimony as to the defendants'

communications. See Robinson v. Watts Detective Agency, Inc., 685

F.2d 729, 739 (1st Cir. 1982) ("Whether . . . [a witness's]

opinion is accurate goes to the weight of the testimony, not its

admissibility."). That this one search came up empty may raise a

question about the government's theory that the drug-distribution

scheme described in the defendants' communications was

effectuated. But it says nothing dispositive about the

government's showing that the case agent was familiar with drug

vernacular generally and with the defendants' jargon specifically.

It was this familiarity that qualified the case agent to offer his

interpretation of language particular to the defendants'

operations. See Albertelli, 687 F.3d at 446.

We do not gainsay that the absence of cocaine in the

vehicle of the person whom the government believed to be the

transporter provided exculpatory evidence with respect to the

ultimate issue of guilt. But the appropriate way to explore this

discrepancy was through cross-examination. See Dunston, 851 F.3d

at 97 (explaining that voir dire and cross-examination of law

enforcement witness who provided interpretive testimony "mitigated

any risk of unfair prejudice from his testimony"). Here, however,

the defendants failed to call attention to this discrepancy on

- 28 - cross-examination. And as we explained earlier, the accuracy of

an opinion poses a question distinct from the question of its

admissibility. See Robinson, 685 F.2d at 739. Thus, this claim

of error fails.

D

The defendants both challenge the case agent's

testimony, based on his experience and the context of the

conversations, that various numbers and terms referred to specific

amounts of cocaine. We sample some of these conversations.

The case agent interpreted "the whole thing" as

referring to one kilogram of cocaine. "I got five," he said,

referred to 500 grams of cocaine. Needing "seven (7) or eight (8)

something like that" meant 700 or 800 grams of cocaine. "I'm still

waiting on that shit" signified that the person "was likely waiting

on his own supplier for cocaine." And "I got 531 in one piece"

referred — as the case agent saw it — to 531 grams of cocaine that

needed to be sold in a single transaction.

The defendants do not deny that they used these phrases

in their discourse with each other. They submit, however, that

the case agent "was being asked to interpret what was otherwise

plain English" and that "the jury was, or would [have] become,

well-educated enough as to the nature and scope of the alleged

conspiracy to make its own determination as to the quantity of

- 29 - drugs being discussed, if, indeed, drug quantities were even being

discussed at all."

They add that — aside from general references to context

— the case agent never explained his interpretations. For example,

there was no elaboration as to why phrases like "the whole thing"

were code words that carried more than their ordinary meaning.

With no significant ambiguity, the defendants maintain, the case

agent, in effect, was telling the jury what result to reach.

When a law enforcement officer provides interpretive

testimony as lay opinion, the government must erect a foundation

to ensure that the opinion fulfills the requirements of Rule 701.

See United States v. Prange, 771 F.3d 17, 27 (1st Cir. 2014). For

its part, the district court must assess whether the "law

enforcement officer . . . is equipped by knowledge, experience,

and training to break [criminal] codes [such that his testimony]

can help to inform the factfinder's understanding" of the

communications at issue. Dunston, 851 F.3d at 97. Moreover, the

witness must "point to [a] rational basis for the interpretation

offered" such that his opinion does more than just speculate.

Albertelli, 687 F.3d at 447.

In this instance, we think that the defendants are too

quick to discount the vagueness of their communications. If it

was unclear that the communications were even discussing drugs (as

the defendants suggest), it would be puzzling to call these

- 30 - communications unambiguous such that interpretive testimony would

be forbidden. For example, the phrase "still waiting on that shit"

makes clear that the speaker is waiting on something but remains

unclear as to what the speaker may be waiting for. It follows

that one familiar with communications between these persons (and

drug vernacular in general) is well-situated to explain that such

vague expressions described drug transactions. See United States

v. Valbrun, 877 F.3d 440, 444 (1st Cir. 2017) (permitting co-

conspirator to explain vague statements like "putting the thing,"

"my stuff," and "hid[ing] it well" (alteration in original)).

It is perhaps more difficult to justify the government's

reading of numbers that appeared to refer to quantities of cocaine.

After all, reading Arabic numerals requires no special expertise.

In addition, other communications did not use single digits to

represent large quantities but, rather, wrote out three-digit

numbers (e.g., "531 in one piece"). Finally, the search of one

residence uncovered only about two grams of cocaine, perhaps

indicating that the defendants sometimes did deal in single-digit

quantities of cocaine. Against this backdrop, the defendants

suggest that the single-digit numbers in the relevant

communications might have meant just that — single-digit grams of

cocaine.

We think that the defendants are more ready than the

circumstances permit to assume their own interpretation of these

- 31 - communications. Although a number like "five" might refer to five

grams of cocaine (as the defendants submit), it also might be

shorthand for 500 grams (as the government contends). Moreover,

there is no reason that "five" — without further context — could

not plausibly mean five kilograms (which would not be a facially

unreasonable amount for veteran drug distributors to handle). So,

too, it is common in many situations to omit the units or zeroes

after a number when that information would be clear from the

context. See, e.g., Belanger, 890 F.3d at 28-29 (noting importance

of context to understanding vague "[p]hrases like 'drop 10 off'");

Dunston, 851 F.3d at 96-97 (permitting DEA agent "to testify about

the meaning of slang terms and jargon" because, among other

considerations, he "took into account the context in which those

terms were used"). Police found several hundred grams of cocaine

on Richards's person, meaning that the enterprise involved

hundreds of grams of crack and cocaine. And the one three-digit

number (531) that they wrote out could not have been abbreviated

the way other three-digit numbers were abbreviated (such as 500

becoming "5") without losing specificity in the last two digits.

Given his familiarity with the drug trade, the case agent was well

suited to resolve the uncertainties surrounding the defendants'

cryptic numerical references. See Albertelli, 687 F.3d at 446-

47.

- 32 - We are mindful that no direct evidence confirms the case

agent's specific interpretations. But these points show that

plausible competing interpretations exist for the language used.

And the case agent's testimony on these points provided the

defendants with ample fodder for cross-examination. They could

have pressed the case agent on why he understood these numbers to

refer to hundreds of grams of cocaine, but they eschewed that

course of action.

That leaves the defendants' contention that the case

agent failed to explain the specific bases for his interpretations.

See Prange, 771 F.3d at 28 (noting importance of "an objective

basis for the agent's understanding that [defendant] knew they

were speaking in coded terms and his impression of what [defendant]

actually meant"). They maintain that the case agent's testimony

was based on nothing more than his review of the telephone calls

that the jury — without specialized knowledge — could have listened

to and understood to form its own opinion. This contention misses

the mark.

The case agent reviewed the voluminous record — which

would have been impractical to present to the jury in its entirety

— with the advantage of over a decade of experience in drug

investigations. Based on this experience, he could more readily

determine when and how the defendants employed ambiguous language

to mask their discussions of illegal activities. For example, he

- 33 - observed that the defendants spoke about drugs in a "guarded"

manner, which contrasted with how they spoke about other topics

(like personal affairs). And he connected these conversations to

other aspects of the investigation, such as drug transactions that

the police had observed. On this scumbled record, we cannot say

that the district court abused its wide discretion by admitting

this testimony for such an interpretive purpose.

E

On the sixth day of trial, two local police officers

each testified that they were assigned to a "gang unit."4 The

district court overruled Rodriguez's objections and denied his

request for a limiting instruction. Before us, he asserts — based

on these testimonial tidbits — that jurors may have inferred

unfairly that he and Melendez were in a gang and, thus, had an

"agreement . . . to work together to achieve unlawful ends." In

a close case "where proof of [his] willful agreement" to distribute

or possess with intent to distribute drugs was "otherwise lacking,"

Rodriguez posits, seemingly small details like this one might have

"tipped the scales" in convincing the jury that he was guilty of

conspiracy.

4 Several days later, a third officer mentioned that he had performed surveillance with an officer "from the gang unit." Neither defendant objected to this comment, and we regard any such objection as waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

- 34 - The government demurs. It submits that these few

mentions simply provided background and points out that there was

never an allegation that either defendant belonged to a gang.

Rodriguez rejoins that the picture is not quite as unambiguous as

the one the government tries to paint: in his view, the government

recognized the potential for bias, yet highlighted the prejudicial

aspects of the testimony that was admitted. In support, he notes

that the government complied with the court's request not to

mention any affiliation that other law enforcement witnesses may

have had with a gang unit.

Inasmuch as Rodriguez objected below, our review of this

claim of error is for abuse of discretion. See Kilmartin, 944

F.3d at 335. It is, of course, arguable that the mention of a

gang unit may have left more than a passing impression on the

jurors. That possibility is problematic because this information

had no apparent relevance to the ATF's work in uncovering the

defendants' drug-distribution activities. And here, unlike in

United States v. Liranzo, 385 F.3d 66 (1st Cir. 2004), the court

did not give a limiting instruction to minimize potential

prejudice. See id. at 71-72 (discerning no abuse of discretion in

allowing officers to testify about their "assignments to the gang

task force" when "the evidence was not admitted to show [the

defendant's] gang membership and the limiting instruction made

that clear").

- 35 - Even with these considerations in mind, we need not

tarry. We take no view as to whether admitting this testimony was

error at all: the testimony was harmless in any event. Aside

from a few offhand references to a gang unit, there is no sign

that the government presented its case in a way that either

suggested that the conspiracy was organized by a gang or that any

defendant was acting as a member of a gang. And as the defendants

acknowledge, the most damning evidence against them was their

communications, which the case agent characterized as describing

drug transactions. This evidence was reinforced by other proof,

such as cocaine recovered from physical searches. Given that the

gravamen of the government's case was unrelated to any potential

gang affiliation, we conclude that "it is highly probable that

[any] error did not influence the verdict." United States v.

Piper, 298 F.3d 47, 56 (1st Cir. 2002).

Rodriguez questions this reasoning. He suggests that

the jury's uncertainty about whether a conspiracy had been proven

(as evidenced by its question, see infra at 41) made it more likely

that the jury eventually relied on other factors — like the

defendants' imputed gang membership — in concluding that the

defendants were guilty. Jurors, he muses, may have inferred that

the defendants intended to enter into an agreement to distribute

cocaine because membership in a gang "implies an

agreement . . . to work together to achieve unlawful ends." But

- 36 - this is unadulterated conjecture, and we are left to speculate as

to whether the jury may or may not have followed this line of

reasoning.

The jury would have had to construct a chain of

inferences to impute an illegal agreement between Rodriguez and

Melendez based on the testifying officers' gang-unit assignments

when no other mention of a gang appeared at trial. Nor can we

agree with Rodriguez's assertion that "proof of [his] willful

agreement to advance" the cocaine-distribution conspiracy was

"otherwise lacking." To the contrary, the government's evidence

showed that the drug-trafficking operation used Rodriguez's

residence to dispatch drugs, that the operation used Rodriguez's

car to ferry drugs to New Hampshire, and that Rodriguez cooked

crack cocaine on Melendez's instruction. Consequently, we are

left without sufficient reason to believe that the verdict was

tainted by prejudice associated with the passing mentions of a

gang unit. We therefore reject Rodriguez's claim of error.

IV

Rodriguez also mounts a challenge to the jury

instructions.

"When a party assigns error not to the substance of a

jury instruction but to the court's decision to give a requested

instruction at all, our review is de novo." Shervin v. Partners

- 37 - Healthcare Sys., Inc., 804 F.3d 23, 47 (1st Cir. 2015). To prevail

on a claim of failure to give a requested instruction, the

requesting party must show that "the omitted instruction [was]

integral to an important part of the case and its content [was

legally correct and] not otherwise substantially covered by the

instructions as given." Id.

"Like the district court, [w]e examine the evidence on

the record and . . . draw those inferences as can reasonably be

drawn therefrom, determining whether the proof, taken in the light

most favorable to the [requesting party,] can plausibly support

the theory of the [party]." United States v. Baird, 712 F.3d 623,

627 (1st Cir. 2013) (first and second alterations in original)

(internal quotations omitted). When all is said and done, a

reviewing court must determine "whether the evidence, viewed in

the light most favorable to the proponent of the instruction,

justifies jury consideration of the underlying issue." Butynski

v. Springfield Term. Ry. Co., 592 F.3d 272, 276 (1st Cir. 2010).

If the requesting party has failed to preserve a claim

of instructional error, our review is only for plain error. See

United States v. Pennue, 770 F.3d 985, 989 (1st Cir. 2014). Under

this demanding standard, the party must show "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected [his] substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

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

2001).

Rodriguez first contends that, because the government

had to carry the burden of proof in establishing the identities of

"the players," a jury instruction warning of the inaccuracy of

cross-racial identifications was critical to ensure that the jury

correctly identified the conspirators. Nevertheless, the district

court refused his request to instruct on cross-racial

identification. Rodriguez assigns error to this refusal.

As relevant here, a white officer identified Mack, a

Black man, as the driver of a vehicle purportedly carrying drugs

while it was dark and rainy. White officers also identified other

individuals who were either Black or Hispanic. Had an instruction

highlighting these concerns been given, Rodriguez insists, jurors

may have doubted his involvement in the charged conspiracy.

Because this claim of error was preserved, our review is

de novo. Shervin, 804 F.3d at 47. Nevertheless, the claim fails.

The most conspicuous badge of failure is that the requested

instruction does not address a sufficiently important issue. To

begin, Rodriguez himself was never implicated in the conspiracy

through a cross-racial identification. His claim of error relies

on the possible misidentification of his co-conspirators such that

the jury would have doubted that he conspired with anyone to

- 39 - possess and distribute drugs. But the government need not prove

the identity of each and every conspirator; it need only prove

that at least one other person conspired with the defendant to

commit the charged offenses. See United States v. Pena, 24 F.4th

46, 75-76 (1st Cir. 2022). As long as Rodriguez engaged in this

conspiracy (for which there was copious evidence beyond encounters

with potentially misidentified co-conspirators), it was immaterial

that others may have been misidentified in particular encounters.

Let us be perfectly clear. We express no opinion on

whether a cross-racial identification instruction might sometimes

be legally required. We hold only that, in these circumstances,

the omitted instruction was not "integral to an important part of

the case." Shervin, 804 F.3d at 47. Accordingly, Rodriguez's

claim of error comes up empty.

Rodriguez next contends that the evidence showed — at

most — that he trafficked in cocaine, not that he was a member of

the charged conspiracy. As a result, he maintains, the court

committed reversible error by not giving a buyer-seller

instruction.5 In other words, he contends that the district court

5 Although the purchase of illicit drugs reflects an unlawful agreement between the buyer and the seller, such a transaction does not necessarily include the additional elements needed to prove a conspiracy to possess and distribute drugs. See United States v. Moran, 984 F.2d 1299, 1303 (1st Cir. 1993) (explaining that conspiracy requires, inter alia, "[c]ommon knowledge,

- 40 - should have instructed the jury that an agreement to purchase "1

or 2," in itself, was insufficient to prove the charge of

conspiracy. Because this claim of error was not advanced below,

our review is for plain error. See Pennue, 770 F.3d at 989.

Plain error is plainly absent. The meat of the requested

instruction was substantially covered elsewhere in the court's

charge. For example, the court's conspiracy instruction required

the jury to find that each particular defendant intended to engage

in the conspiracy. It follows that, the jury — in accordance with

the district court's instructions — could not have convicted

Rodriguez of conspiracy if it believed that the evidence proved no

more than a buyer-seller transaction between Rodriguez and

Melendez. See United States v. Moran, 984 F.2d 1299, 1303 (1st

Cir. 1993).

To cinch the matter, the district court — after the jury

had begun its deliberations — responded to a jury question on this

subject. The court told the jurors that, as a precursor to a

finding of guilt on the conspiracy charge, "[i]t is not enough to

prove that the defendants conspired to purchase cocaine." This

supplemental instruction sufficiently distinguished a simple one-

interdependence, [and] shared purpose"). In a conspiracy to acquire and distribute cocaine, "two individuals agree that one of them will sell cocaine and the other will assist." Id. By contrast, in a buyer-seller transaction, "one merely sells the same cocaine to another without prearrangement and with no idea of or interest in its intended use." Id.

- 41 - off purchase of cocaine from Melendez (as Rodriguez characterized

his involvement) from a more complex conspiracy to purchase and

distribute large amounts of cocaine as a middleman (as the

government characterized his involvement). Put another way,

Rodriguez could not have been convicted of conspiracy to distribute

and conspiracy to possess with intent to distribute cocaine (as

the indictment charged) if all he had agreed to undertake was to

purchase cocaine once from Melendez. See supra note 4.

To be sure, Rodriguez may have drawn some solace from

the precise language of his requested buyer-seller instruction.

But a defendant is not entitled to dictate the trial court's

phraseology. As "long as the charge sufficiently conveys the

[party]'s theory, it need not parrot the exact language that the

[party] prefers." United States v. McGill, 953 F.2d 10, 12 (1st

Cir. 1992). Nor is the district court "obligated to instruct on

every particular that conceivably might be of interest to the

jury." United States v. DeStefano, 59 F.3d 1, 3 (1st Cir. 1995).

In this instance, we are convinced that the thrust of the requested

buyer-seller instruction was substantially covered by other

instructions. See Shervin, 804 F.3d at 47. Consequently, we

cannot say that it was error at all — let alone clear or obvious

error — either to omit a buyer-seller instruction or to refrain

from providing a more detailed conspiracy charge.

- 42 - V

In the revised presentence investigation report (PSI

Report), the probation officer responded to the government's

objection to the original report by increasing its drug weight

calculation from about three kilograms to about four kilograms.

This elevated Melendez's base offense level to twenty-eight. See

USSG §2D1.1(c)(6). In the process, the probation officer declined

to adopt Melendez's contention that the government was engaged in

double counting and that, therefore, the drug weight should total

around 1.75 kilograms for a base offense level of twenty-four.

See id. §2D1.1(c)(8). The probation officer also rejected the

government's suggestion that Melendez should receive a four-level

"organizer or leader" enhancement instead of a three-level

"manager or supervisor" enhancement. See id. §3B1.1(a)-(b).

At the disposition hearing, Melendez reprised his

objection to the drug-weight calculation. He explained that the

government's figure double-counted some of the cocaine by

including the same amount on both purchase and sale. See United

States v. Lee, 892 F.3d 488, 491 (1st Cir. 2018). The government

conceded that it would be improper to count the same cocaine both

when it was purchased and when it was sold but disputed that any

such double counting had occurred. The court agreed with the

government. In addition, the court sustained the government's

objection to the lesser role-in-the-offense enhancement,

- 43 - classified Melendez as an organizer or leader, and imposed the

four-level enhancement. See USSG §3B1.1(a).

With another adjustment (not material here), the court

calculated a total offense level of thirty-four. Combined with

his criminal history category (IV), he faced a guideline sentencing

range of 210 to 262 months. The court proceeded to impose a

downwardly variant sentence of 156 months.

Melendez challenges two enhancements. First, he assails

the attribution to him of 4.2 kilograms of cocaine — an attribution

that put him over the 3.5-kilogram threshold needed to elevate his

base offense level from twenty-six to twenty-eight. See id.

§2D1.1(c)(6)-(7). Second, he challenges the four-level "organizer

or leader" enhancement. See id. §3B1.1(a). We deal with these

challenges sequentially.

"[W]e review the [sentencing] court's interpretation and

application of the sentencing guidelines de novo and assay any

subsidiary findings of fact for clear error." United States v.

Walker, 665 F.3d 212, 232 (1st Cir. 2011). "[T]he usual rules of

evidence do not pertain at sentencing. Rather, the . . . court

may base sentencing determinations on any evidence that it

reasonably finds to be reliable." Id.

The government bears the burden of proving any

sentencing enhancement by a preponderance of the evidence. See

- 44 - id. Where, as here, there is no direct evidence of the total

quantity of drugs attributable to a drug-trafficker, the

sentencing court may make "[a] 'reasoned estimate[] based on

historical data.'" United States v. Bernier, 660 F.3d 543, 546

(1st Cir. 2011) (second alteration in original) (quoting United

States v. Platte, 577 F.3d 387, 392 (1st Cir. 2009)). This "drug-

quantity calculation is a factual finding" that we review for clear

error. United States v. Kinsella, 622 F.3d 75, 86 (1st Cir. 2010).

So, too, because "[r]ole-in-the-offense determinations

are innately fact-specific, . . . 'we review such determinations

only for clear error.'" United States v. Rostoff, 53 F.3d 398,

413 (1st Cir. 1995) (quoting United States v. Dietz, 950 F.2d 50,

52 (1st Cir. 1991)). To show that a defendant qualifies for the

"organizer or leader" enhancement, "the government's evidence must

satisfy both a scope requirement (that is, the evidence must show

that the enterprise involved five or more participants or was

otherwise extensive) and a status requirement (that is, that the

defendant acted as an organizer or leader of the enterprise)."

United States v. Rivera, 51 F.4th 47, 51 (1st Cir. 2022).

For guidance in evaluating a defendant's role in the

criminal enterprise, the guidelines lay out seven factors to

consider:

[T]he exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of

- 45 - accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

USSG §3B1.1, cmt. n.4. "This list is intended to be representative

rather than exhaustive[, and t]here need not be proof of each and

every factor before a defendant can be termed an organizer or

leader." United States v. Tejada-Beltran, 50 F.3d 105, 111 (1st

Cir. 1995).

We turn first to the drug-weight enhancement. See USSG

§2D1.1(c)(6). Melendez asserts that the calculated cocaine weight

of 4.2 kilograms double-counted certain drug quantities by

including the same cocaine when he purchased it and when he sold

it. See Lee, 892 F.3d at 493 (recognizing "possibility of a

reversible error due to . . . double counting"). In his view, the

evidence reasonably reflected only the following amounts of

cocaine: 750 grams on March 14; 500 grams on April 12; 700 grams

on April 27; 500 grams on May 6; 531 grams on May 16; and 307.7

grams on May 25. And if these amounts were the sole basis for an

accurate estimate, the total drug quantity should have been 3,288.7

grams (about a kilogram less than the amount for which the court

sentenced him).

- 46 - Melendez says that the 120 grams cooked into crack

cocaine on March 24, the twenty-two grams transferred to Burgos on

April 2, and the 400 grams sold to Richards on April 3 all came

from the 750 grams that he had received from Cordova on March 14.

In addition, he says that the 400 grams given to Richards on April

22 were part of the 500 grams that he had received from Cordova on

April 12. This double counting, he maintains, was what elevated

the total amount of drugs attributable to the conspiracy to exceed

the 3.5-kilogram threshold needed to increase his base offense

level by two levels. See USSG §2D1.1(c)(6)-(7).

Because a sentencing court's "drug-quantity calculation

is a factual finding," our review is for clear error. Kinsella,

622 F.3d at 86. And in the absence of direct evidence of the total

quantity of drugs, the court may rely on a reasonable estimate of

the total quantity. See Bernier, 660 F.3d at 546. Thus, "our job

'is not to see whether there is any view of the evidence that might

undercut the district court's finding; it is to see whether there

is any evidence in the record to support the finding.'" Kinsella,

622 F.3d at 86 (quoting United States v. Wade, 114 F.3d 103, 105

(7th Cir. 1997)).

We start with the April 22 transaction and,

specifically, the 400 grams that allegedly came out of the 500

- 47 - grams that Melendez had procured from Cordova.6 Melendez's

characterization of this transaction does not withstand scrutiny.

Although Cordova may have been Melendez's primary supplier, he was

not necessarily Melendez's sole supplier. For example, in one

recorded conversation, Melendez appeared to be sourcing cocaine

from Rodriguez to sell to Richards. Indeed, the government

identified this conversation in the PSI Report, but Melendez

objected to it only summarily below and never reckoned with it on

appeal. Melendez's communications also appear to discuss what

could have been an additional cocaine purchase from Cordova on

April 13.

Given these facts, it is plausible that Melendez sold

cocaine on April 22 that came from sources other than Cordova. On

this record, we cannot say that the district court clearly erred

— let alone committed plain error — by concluding that the two

scenarios involved different sources of cocaine. See Kinsella,

622 F.3d at 86 ("[W]hen the record supports more than one estimate,

the judge's selection 'from among plausible alternatives cannot be

6 Although Melendez objected that the 500 grams attributed to him from the April 12 Cordova purchase involved double counting, the objection cited a paragraph of the PSI Report that discussed a transaction on April 3. Because Melendez did not argue below that the April 22 Richards sale involved cocaine from the April 12 Cordova purchase, this claim of double counting is unpreserved, and our review is for plain error. See Duarte, 246 F.3d at 60.

- 48 - clearly erroneous.'" (quoting United States v. Morillo, 8 F.3d

864, 871 (1st Cir. 1993))).

That ends this aspect of the matter. Even if Melendez

prevailed on all his other claims, the total drug quantity would

decrease only by 542 grams. The total amount of cocaine would

then become 3,658 grams — an amount that is still above the 3.5-

kilogram threshold needed to bring into play a base offense level

of twenty-eight. See USSG §2D1.1(c)(6). Accordingly, any error

— if one occurred — would be harmless because it would not affect

the total offense level. See United States v. Rivera Calderón,

578 F.3d 78, 105 (1st Cir. 2009) (holding that "error was harmless

because the court's other findings were accurate and qualified

[defendant] for the offense level assigned").

Melendez next asserts that the court clearly erred by

imposing a four-level "organizer or leader" enhancement.7 He

contends that it was a mischaracterization to suggest that he had

organized or led a "drug trafficking organization" when the

evidence showed only that a small group, over a short period of

7 Melendez also challenges an enhancement to his sentence for the robbery offense. But he mounts that challenge only in a footnote and makes no developed argumentation in support of it. We thus deem the challenge waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived").

- 49 - time, occasionally collaborated to buy and sell relatively modest

quantities of cocaine.8 He adds that the court failed to explain

why Rodriguez did not receive the same enhancement when neither of

the defendants had authority over the other and they maintained

joint responsibility for any assets. See United States v. Walker,

89 F.4th 173, 186 (1st Cir. 2023) ("The lack of any explanation

for the district court's decision gives us special pause here

because it is not apparent from the record that the court performed

the inquiry required by the . . . [g]uideline.").

We agree that the evidence does not suffice to show that

Melendez was the leader of the conspiracy. The evidence, however,

supports the conclusion that Melendez was an organizer of the

conspiracy, and that the district court did not overstep its

bounds by treating him as such. Because one's status as an

"organizer" is an inherently fact specific determination, our

review of this finding is for clear error. See Rostoff, 53 F.3d

at 413. One's status as an "organizer" depends on factors such

as his exercise of decision-making authority; the nature of his

8 This passing description of the events is the only possible reference that challenges the scope requirement. Thus, Melendez has waived any argument that the government has not satisfied this requirement. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived"). And in all events, the conspiracy clearly involved at least five participants (Melendez, Rodriguez, Mack, Jean, and Cordova), which would in itself be sufficient to satisfy the scope requirement. See Rivera, 51 F.4th at 51.

- 50 - participation in the criminal activity; whether he recruited

accomplices; whether he was entitled to more of the proceeds; to

what extent he planned or organized the criminal activity; and

how much control or authority he had over other participants. See

USSG §3B1.1, cmt. n.4. Here, the facts plausibly support an

inference that Melendez acted as an organizer.

There is evidence that Melendez planned the criminal

activity, structured the deals, received the proceeds, engaged in

recruitment, and coordinated the activities of various henchmen.

Although Melendez may have only arranged transactions with other

associates — rather than supervise their activities — "[o]ne may

be classified as an organizer, though perhaps not as a leader, if

he coordinates others so as to facilitate the commission of

criminal activity." Tejada-Beltran, 50 F.3d at 112.

To be sure, the government acknowledged that other

participants played substantial roles in the conspiracy. For

example, Rodriguez's residence was "the hub of their drug

operation." And his "role was to ensure the security of the

assets" and "the security of the drugs that they

[were] . . . acquiring and/or distributing." Moreover, it is

apparent that Melendez had no authority over Cordova or Richards.

Cordova independently contacted Melendez when he had cocaine to

sell, and Richards independently contacted Melendez when he wished

- 51 - to purchase cocaine (although Melendez on occasion would advise

Richards when he had cocaine available for sale).

Even so, Melendez's argument overstates the authority

over an operation that the guidelines require in order to ground

"organizer" status. Although Rodriguez also played a significant

role in the conspiracy, "a defendant need not exercise complete

hegemony over the entire criminal enterprise in order to qualify

as an organizer." United States v. Ilarraza, 963 F.3d 1, 14 (1st

Cir. 2020). After all, "more than one person [can] qualif[y] as

a leader or organizer of a criminal association or conspiracy."

USSG §3B1.1, cmt. n.4; see Ilarraza, 963 F.3d at 14. Because

these facts adequately buttress the district court's application

of the enhancement, we reject Melendez's claim of error.

VI

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

the judgment of the district court is

Affirmed.

- 52 -