United States v. Willis

14 F.4th 170

Opinion

18-3617-cr (L)

United States v. Willis, et al

1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 5

6 August Term, 2020 7 8 Nos. 18-3617-cr, 19-1051-cr 9 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. 15 16 LARRY WILLIS, ISIAH PIERCE 17 18 Defendants-Appellants. 19 _______________________________ 20 21 Appeal from the United States District Court 22 for the Western District of New York 23 No. 17-cr-32 (LJV), Lawrence J. Vilardo, District Judge, Presiding. 24 (Argued: December 7, 2020; Decided: September 20, 2021) 25 26 Before: 27 POOLER, PARKER, and LYNCH, Circuit Judges. 28 29 Defendants-Appellants Larry Willis and Isiah Pierce appeal from 30 judgments entered by the United States District Court for the Western District of 31 New York (Lawrence J. Vilardo, J.) following their convictions on multiple drug- 32 and gun-related counts. Willis and Pierce contend that there was insufficient 33 evidence to support their convictions and raise various issues relating to the

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1 conduct of their trials and sentences. We conclude that sufficient evidence 2 supported their convictions, and we see no errors that would require a new trial. 3 Accordingly, we AFFIRM the judgments. However, because the district court 4 failed to rule whether Willis’s sentence would run concurrently to an 5 undischarged state sentence, we REMAND his sentence for resentencing and 6 clarification on this issue. 7 8 AFFIRMED IN PART, VACATED IN PART, AND REMANDED 9 ____________________________ 10 11 KATHERINE A. GREGORY, Assistant United States 12 Attorney for James P. Kennedy, Jr., United States 13 Attorney for the Western District of New York, 14 Buffalo, N.Y., 15 for Appellee. 16 17 CARLA M. SANDERSON 18 Carla Sanderson Law, 19 New York, N.Y., 20 for Defendant-Appellant Willis. 21 22 ROBERT A. CULP 23 Garrison, N.Y., 24 for Defendant-Appellant Pierce. 25 ______________________________

26 BARRINGTON D. PARKER, Circuit Judge: 27 Larry Willis and Isiah Pierce appeal from judgments of conviction entered 28 following a three-day trial in the United States District Court for the Western 29 District of New York (Vilardo, J.). The defendants, charged in a twelve-count 30 superseding indictment, were convicted of various drug-related crimes and

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1 firearms offenses. 1 The district court denied defendants’ motions for judgments 2 of acquittal. See Fed. R. Crim. P. 29. Pierce was sentenced to 168 months and 3 Willis to 210 months of incarceration. 4 On appeal, defendants contend that the evidence was insufficient to 5 support the jury’s verdict on each of the counts of conviction. They also challenge 6 various of the district court’s evidentiary rulings and its calculation of the 7 sentences recommended by the Sentencing Guidelines (“U.S.S.G.” or

1 Both defendants were charged in the following: Count 1, narcotics conspiracy in violation of 21 U.S.C. § 846; Count 2, possessing 28 grams or more of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(B); Count 3, possessing 100 grams or more of heroin and butyryl fentanyl with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); Count 4, possessing 40 grams or more of fentanyl with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B);

Count 5, possessing powder cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); Count 6, maintaining a drug involved premises in violation of 21 U.S.C. § 856(a)(1); Count 7, possessing firearms in furtherance of drug trafficking crimes in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. For Counts 2 through 7, both defendants were also charged with aiding and abetting the alleged crimes in violation of 18 U.S.C. § 2.

Willis was individually charged in Count 9, possessing firearms and ammunition as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); Count 10, possessing heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and Count 11, possessing cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).

Pierce was individually charged in Count 8, possessing firearms and ammunition as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and Count 12, possessing cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(C).

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1 “Guidelines”). For the reasons that follow, we affirm the convictions, but remand 2 Willis’s sentence.

3 BACKGROUND

4 The issues raised on appeal center on Willis’s and Pierce’s use of two 5 apartments—the upper and the lower—at 70 Henrietta Avenue, Buffalo, New 6 York(“70 Henrietta”) from which they conducted a drug trafficking operation. 7 Officers of the Erie County Sheriff’s Office (“ECSO”) executed search warrants at 8 that location and seized narcotics, drug trafficking paraphernalia, firearms, and 9 ammunition. 10 Testimony adduced by the government at trial established that on the 11 morning of December 1, 2016, the ECSO had attempted to execute a warrant 12 authorizing a search of 108 Peck Street, of Willis’s person, and of his black 13 Pontiac Grand Prix. Efforts to locate Willis led them to the two apartments at 70 14 Henrietta. While conducting surveillance, Deputy William Granville of the ECSO 15 saw a dark-colored Dodge Charger pull into the front of 70 Henrietta, followed 16 closely by a blue Chevrolet Equinox (the “Equinox”). Defendant Isiah Pierce was 17 driving the Charger, while Tanzie Fuller was driving the Equinox, which was

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1 registered to Willis. The drivers of both vehicles got out and entered the front 2 door at 70 Henrietta. 3 After a short period, Pierce and Fuller exited 70 Henrietta, and both got 4 into Willis’s Equinox. Shortly thereafter, Officer Cully Ferrick stopped Pierce 5 who was driving the Equinox for excessive tint on the glass. After a brief 6 conversation, Detective Timothy Donovan asked him to step out of the vehicle 7 because he “smelled the odor of marijuana.” Pierce App’x at 51. The officers 8 searched the vehicle and recovered a “violation” or non-criminal quantity of 9 marijuana, as well as five cellphones. A search of Pierce’s person turned up 10 approximately $1,700 in cash and a set of keys. At that point, Pierce was arrested, 11 searched, and taken to the ECSO headquarters at 45 Elm Street (“45 Elm”). Once 12 they arrived, Pierce was left handcuffed in an interview room. Detective 13 Donovan testified that at some later point he went back into the interview room 14 and “found a large amount of narcotics that were underneath the desk area” that 15 had not been in the room when he first left Pierce there. Pierce App’x at 55. 16 Although none of these materials had been found in the search incident to 17 Pierce’s arrest, Donovan testified that he found “a plastic bag which contained 18 numerous knotted plastic bags that contained white rock-like substance that

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1 appeared to be cocaine, and also bundles full of what appeared to be heroin” 2 along with “glass wax envelopes that are commonly used to package heroin.” 3 Pierce App’x at 56. 4 While Pierce was being detained by the ECSO, Deputy Granville 5 continued his surveillance of 70 Henrietta. Deputy Granville testified that around 6 2:15 PM, he saw Willis leaving 70 Henrietta, appearing to lock the front door, 7 entering a black Pontiac, and driving away. Around 2:30 PM, officers stopped 8 Willis’s car, searched and arrested him, and searched the car from which they 9 recovered cash, keys, and two cellphones. Deputy Granville testified that, after 10 seeing Willis leave, he remained outside 70 Henrietta for two additional hours 11 until about 4:15 PM when he was notified that other officers were coming to 70 12 Henrietta to execute a search warrant. 13 After Willis was arrested, he was brought to 45 Elm where he was placed 14 in an interview room. Detective Timothy Carney testified that he saw Willis 15 “digging down his pants,” that he and Detective Daniel Granville entered the 16 room, and that Detective Granville located narcotics in a bag on the floor. Willis 17 App’x at 70. In the bag, the officer claimed to find yellow bags commonly used 18 for packaging heroin, and bags that contained crack cocaine and heroin. The

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1 drugs found on the floor at 45 Elm were the subject of Counts 10 and 11 charging 2 Willis with possession of heroin and cocaine with intent to distribute and Count 3 12 charging Pierce with possession of cocaine with intent to distribute. Both 4 defendants were acquitted on these counts. 5 Later that day, the officers executed a search warrant for the lower 6 apartment at 70 Henrietta. Keys recovered from Willis at his arrest opened the 7 front door at 70 Henrietta, as well as the door to the lower apartment. The 8 officers recovered a cache of weapons including assault rifles, a pistol, 9 magazines, and rounds of ammunition. The officers also recovered 10.35 grams 10 of cocaine base and tools of the drug trade including baking soda, digital scales 11 with traces of white powder, a metal strainer, bags, whisks, a spoon, a fork, a 12 large quantity of small rubber bands, razors, a latex glove, and a metal weight. In 13 addition, the officers seized a title, in Willis’s name, to the Chevrolet Equinox 14 that Fuller and Pierce had been driving earlier, insurance documents in the name 15 of Larry Willis, a Buffalo police incident card, a traffic ticket, DMV paperwork, 16 and photographs of Willis and Pierce together. 17 Later that evening, the officers executed a search warrant for the upper 18 apartment. Keys recovered from Pierce at his arrest opened the front door of 70

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1 Henrietta, the door to the upper apartment, and a padlocked bedroom door in 2 that apartment. The keys also included a Tops Friendly Markets Bonus Card on 3 the key ring that was connected to the account of Pierce’s girlfriend, Courtney 4 Brouse. 5 Inside the upper apartment, officers recovered a separate cache of 6 weapons that included handguns, a large capacity magazine, rounds of 7 ammunition, a digital scale, packaging materials, and three bags containing 8 167.98 grams of butyryl fentanyl and heroin. The officers also recovered cocaine 9 base and additional quantities of heroin, fentanyl, and butyryl fentanyl. The total 10 weight of the additional heroin and fentanyl was approximately 50 grams. The 11 weight of the cocaine seized was approximately 142 grams of base, and 12 approximately 253 grams of powder. One of the main factual issues on appeal 13 centers on whether the contraband found in the two apartments could be 14 attributed to either or both defendants. 15 The arresting officers subsequently obtained warrants to search the phones 16 seized from Willis and Pierce. One of the phones recovered from the Equinox 17 had received texts addressing the recipient as “Zeke,” Pierce’s nickname, and 18 inquiring about Pierce’s girlfriend and daughter, tending to show that the phone

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1 belonged to Pierce. The phone had also received a text message saying “Yo, 2 everyone like that tester, said it was real good, the best they seen. But I’m out of 3 work. Got half a bun.” Doc. 201 at 19. 4 Both defendants were subsequently indicted and proceeded to trial. The 5 government’s theory was that the two apartments were jointly used by Willis 6 and Pierce to manufacture and distribute drugs. The government argued that 7 Willis resided in the lower apartment, pointing to his ownership of keys to the 8 unit and the presence of his personal effects there. Pierce, according to the 9 government, controlled the upper unit as evidenced by his possession of keys to 10 the unit and to the padlocked interior bedroom where the drugs and guns were 11 found. As evidence of joint control, the government argued that after being taken 12 to 45 Elm, Willis discarded heroin and cocaine wrapped in the same yellow 13 packaging found in the upper unit and that the crack cocaine Pierce discarded at 14 45 Elm was wrapped in blue envelopes that were the same as those found in the 15 lower unit. 16 The jury returned a mixed verdict. Willis was convicted of possessing less 17 than 28 grams of cocaine base with intent to distribute (Count 2); possessing 18 powder cocaine with intent to distribute (Count 5); maintaining a drug involved

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1 premises (Count 6); possessing a firearm in furtherance of a drug trafficking 2 crime (Count 7); and possession of firearms and ammunition as a felon (Count 9). 3 Pierce was convicted of possessing 28 or more grams of cocaine base with 4 intent to distribute (Count 2); possessing 100 grams or more of heroin and 5 butyryl fentanyl with intent to distribute (Count 3); possessing 40 grams or more 6 of fentanyl with intent to distribute (Count 4); possessing powder cocaine with 7 intent to distribute (Count 5); maintaining a drug involved premises (Count 6); 8 possessing a firearm in furtherance of drug trafficking (Count 7); and possession 9 of firearms and ammunition as a felon (Count 8). 10 Both defendants were acquitted of the narcotics conspiracy charged in 11 Count 1, and of possessing the cocaine base and heroin that two officers claimed 12 to have found in the interview rooms at 45 Elm as charged in Counts 10, 11, and 13 12. Willis was also acquitted of possessing the heroin and fentanyl found in the 14 upper apartment charged in Counts 3 and 4. After trial, both defendants moved 15 for judgments of acquittal under Federal Rule of Criminal Procedure 29 16 challenging the sufficiency of the evidence supporting their convictions. The 17 district court denied both motions.

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1 Prior to sentencing, Willis filed objections to certain factual portions of the 2 Pre-Sentence Investigation Report (“PSR”). He argued against the PSR’s 3 attribution to him of: currency recovered from Pierce, currency recovered from 4 369 Wabash Avenue (“369 Wabash”), the quantities of drugs found in the upper 5 apartment, and the total quantity of drugs found at 45 Elm (which he had been 6 acquitted of possessing). 7 The district court agreed with Willis in part, finding that the currency 8 found at 369 Wabash, the home of Pierce’s girlfriend Courtney Brouse, was not 9 attributable to Willis, but accepted the remaining facts in the PSR as its findings. 10 The district court concluded that the drugs located in the upper apartment and 11 the interview rooms at the police station were “possessed within the scope and in 12 furtherance of the jointly undertaken criminal activity and were reasonably 13 foreseeable,” Willis App’x at 135, and incorporated into the Guidelines 14 calculation all the drugs from the upper apartment and the cocaine base that 15 Willis and Pierce were acquitted of possessing in the police interview rooms at 45 16 Elm. These findings had a significant effect on the district court’s Guidelines

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1 calculation. The inclusion of the disputed contraband increased Willis’s base 2 offense level on Counts 2, 5, and 6 from 24 to 30. 2 3 The district court determined that Willis’s Guidelines range was 248 to 295 4 months. The district court agreed with Willis that the Guidelines were “too 5 high,” Willis App’x at 163, and sentenced Willis to 150 months concurrently on 6 all counts, except for a mandatory consecutive 60-month term for possession of a 7 firearm in furtherance of drug trafficking, for an aggregate term of 210 months’ 8 imprisonment. The district court did not state explicitly whether Willis’s federal 9 sentence would run concurrently to a then-anticipated state sentence, although 10 Willis’s counsel had noted on the record his assumption that this was the district 11 court’s intention. After calculating Pierce’s Guidelines range, the district court 12 sentenced Pierce to 168 months. 3

2 The district court also applied a two-level enhancement under U.S.S.G. § 2d1.1(b)(12) for maintaining a premises for the purpose of manufacturing or distributing a controlled substance.

3 Pierce does not challenge his sentence. Accordingly, we need not discuss the details of his sentencing. While Pierce contends that the district court plainly erred in authorizing forfeiture of currency and cars, Pierce has not sufficiently argued this issue on appeal. “Merely mentioning or simply stating an issue in an appellate brief is insufficient to preserve it for our review.” Niagara Mohawk Power Corp. v. Hudson River-

Black River Regulating Dist., 673 F.3d 84, 107 (2d Cir. 2012). Pierce fails to cite to any evidence that the currency and cars did not constitute drug proceeds, and the order itself notes that no third parties filed claims to the assets despite receiving notice that the assets would be forfeited.

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1 This appeal followed.

2 DISCUSSION

3 Defendants contend that the government failed to adduce sufficient 4 evidence on all counts of conviction. Because, as discussed below, the 5 government’s evidence of guilt on nearly all counts was substantial, we discuss 6 in detail only the defendants’ colorable insufficiency arguments. Willis, in this 7 regard, contends that though the evidence at trial supported the inference that he 8 had access to the lower apartment, it was insufficient to prove that he possessed 9 the cocaine base and firearms found in the lower apartment, and the powder 10 cocaine found in the upper apartment. Willis also argues that the district court 11 improperly calculated his Guidelines range when it found that, though acquitted 12 of the charged conspiracy, he jointly possessed all the narcotics in the upper 13 apartment with Pierce. As noted, this issue bears heavily on his sentence. 14 Pierce, for his part, argues that the evidence produced at trial equally 15 supports the inference that others connected to the apartments controlled the 16 drug operation and possessed the drugs and the weapons seized by law 17 enforcement. Pierce also contends that the district court abused its discretion in 18 denying his motion for a new trial on ineffective assistance of counsel grounds,

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1 and that the defendants were denied a fair trial because the district court 2 improperly allowed expert testimony of a Drug Enforcement Agency (“DEA”) 3 witness concerning the means and methods of drug trafficking, allowed 4 testimony of the parole officers of Willis and Pierce “thus underscoring their 5 prior convictions,” and allowed the government in its summation to “improperly 6 invite[] the jury to help law enforcement solve the drug problem.” Pierce Br. at 7 51-52.

8 I

9 A. Legal Standards

10 In evaluating the sufficiency of the evidence, we ask “whether, after 11 viewing the evidence in the light most favorable to the prosecution, any rational 12 trier of fact could have found the essential elements of the crime beyond a 13 reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in 14 original). In performing this analysis, we are required to draw all permissible 15 inferences in favor of the government and resolve all issues of credibility in favor 16 of the jury’s verdict. United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). In

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1 addition, we must “consider the evidence presented in its totality, not in 2 isolation.” United States v. Anderson, 747 F.3d 51, 59 (2d Cir. 2014). 4 3 The defendants contend that the government adduced insufficient 4 evidence that either of them possessed any of the contraband recovered from 70 5 Henrietta. At trial, the government pursued theories of constructive possession. 6 “Constructive possession exists when a person has the power and intention to 7 exercise dominion and control” over the contraband in question and may be 8 shown by direct or circumstantial evidence. United States v. Payton, 159 F.3d 49, 9 56 (2d Cir. 1998). Mere presence is insufficient. However, “presence under a 10 particular set of circumstances from which a reasonable jury could conclude that 11 the defendant constructively possessed contraband” is sufficient. United States v. 12 Facen, 812 F.3d 280, 287 (2d Cir. 2016). For example, documents pertaining to a 13 defendant found in the same location as narcotics, possession of a key to the 14 location where drugs are found, or whether the drugs are in plain view, are 15 factors relevant to constructive possession. Facen, 812 F.3d at 287 (collecting 16 cases). Once possession of narcotics has been established, a defendant’s 17 possession of firearms, and “of equipment to weigh, cut and package drugs is

4 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.

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1 highly probative of a purpose to distribute.” United States v. Martinez, 54 F.3d 2 1040, 1043-44 (2d Cir. 1995).

3 B. Discussion

4 Pierce argues that the evidence produced at trial supports the inference 5 that other people—some combination of Tanzie Fuller, his codefendant Willis, or 6 the individuals named on the lease and otherwise connected to the apartments— 7 possessed the drugs and the weapons found in the upper apartment. Regarding 8 the keys in particular, Pierce argues that the circumstances of the surveillance 9 and arrest suggest that Tanzie Fuller also could have been the owner of the keys. 10 To be sure, it is true that the evidence produced at trial connecting Pierce 11 to 70 Henrietta—and consequently to the drugs and weapons which were 12 recovered—did not rule out an inference that others were involved in the drug 13 trafficking at that location. However, the government was not required to prove 14 that the contraband was not subject to the control of others, because possession 15 need not be exclusive, and the jury was not required to accept Pierce’s alternative 16 explanation of innocence. United States v. Gaines, 295 F.3d 293, 300 (2d Cir. 2002); 17 see United States v. Ogando, 547 F.3d 102, 107 (2d Cir. 2008) (“the Government is 18 not required to preclude every reasonable hypothesis which is consistent with

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1 innocence”). In other words, the fact that others may have also possessed the 2 keys, drugs, and weapons does not preclude a finding that Pierce did so as well. 3 Even so, the government’s evidence that the keys belonged to Pierce was 4 compelling. Pierce was arrested in possession of the keys and a key ring on the 5 keys held a Tops Friendly Markets Bonus Card belonging to Courtney Brouse, 6 his girlfriend and the mother of his child. In addition, the government 7 introduced a recorded statement made by Pierce to Brouse from jail that “they 8 have my keys.” Gov’t App’x at 88. Law enforcement officers found large 9 quantities of narcotics and multiple weapons in a padlocked room inside the 10 upper apartment to which Pierce held the keys. A test of DNA found on a loaded 11 Ruger 9mm semi-automatic firearm there could not exclude Pierce as a 12 contributor to the mixture of DNA, with it being 33,000 times more likely to be a 13 match to Pierce than to a random individual. Finally, the jury heard evidence 14 that a cell phone tied to Pierce received multiple text messages discussing what a 15 law enforcement witness testified was evidence of drug transactions. Given these 16 facts, a rational trier of fact could conclude that Pierce controlled the upper 17 apartment as well as the contraband seized there.

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1 For similar reasons, the evidence was sufficient for a jury to conclude that 2 Willis constructively possessed the cocaine base and weapons found in the lower 3 apartment. Willis was observed alone at 70 Henrietta for several hours on 4 December 1, 2016. He possessed keys to the front door and to the lower 5 apartment which contained various of his personal effects including his car 6 registration, insurance documents, clothing, and personal photos. Additionally, 7 law enforcement recovered a semi-automatic rifle on which DNA that likely 8 matched Willis’s was identified as well as tools of the narcotics trade. This 9 evidence was sufficient for a jury to conclude that Willis had access to, and 10 control over, the lower apartment, and therefore possessed the weapons and 11 cocaine base therein. 12 It is a closer question whether sufficient evidence supports Willis’s 13 conviction for possession of the powder cocaine found in the upper apartment. 14 There was no evidence that Willis possessed a key to the upper apartment or to 15 the padlocked closet in which the cocaine powder was stored. Neither his 16 documents nor personal effects were found there and no forensic evidence 17 otherwise connected him to it. The drugs found there were not in plain view, and 18 he was not arrested under circumstances that suggested that he had complete

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1 control over the drugs. In other words, the indicia of dominion and control that 2 tied Willis so strongly to the lower apartment do not exist for the upper 3 apartment. 4 Nonetheless, even if the evidence did not establish that Willis had 5 dominion and control over the upper apartment, a rational jury could have 6 concluded that he possessed the cocaine powder found there, if not directly, then 7 through others, namely Pierce. This is because the superseding indictment 8 charged Willis with committing and, in the alternative, aiding and abetting, the 9 crime of possession of cocaine with intent to distribute it and the district court 10 instructed the jury on this charge. 11 “Under 18 U.S.C. § 2, a defendant may be convicted of aiding and abetting 12 a given crime where the government proves that the underlying crime was 13 committed by a person other than the defendant, that the defendant knew of the 14 crime, and that the defendant acted with the intent to contribute to the success of 15 the underlying crime.” United States v. Hamilton, 334 F.3d 170, 180 (2d Cir. 2003). 16 A conviction under § 2 requires sufficient proof that the defendant knowingly 17 and willfully participated in the offense in a way that showed he intended to 18 make it succeed.

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1 Willis argues that a finding that he “aided” Pierce is impermissible 2 because the government failed to prove that Willis joined Pierce’s venture with 3 knowledge of Pierce’s crimes and the specific intent to further them. He asserts 4 that the government’s contention that the firearms in the downstairs apartment 5 were meant to protect the drugs in the upstairs apartment was not supported by 6 evidence because there were firearms in the upper apartment as well as the 7 lower apartment. He also asserts that “tools and materials [of the trade] were 8 also present in the upper unit, including digital scales, plastic sandwich bags, 9 other plastic baggies and a plastic spoon with suspected drug residue.” Willis Br. 10 at 44. But the fact that others may have also packaged and manufactured drugs 11 in the upper apartment does not mean that Willis did not aid and abet the crime 12 charged. All the tools necessary to manufacture cocaine base were found in the 13 lower apartment including baking soda, digital scales with traces of white 14 powder, a metal strainer, bags, spoons, latex gloves, and a metal weight. Most of 15 these items were not found in the upper apartment. Given these facts, a jury 16 could reasonably have concluded that Willis intended for Pierce, the guilty 17 principal, to possess the powder cocaine. There was sufficient evidence for a 18 reasonable jury to conclude that Pierce possessed the cocaine, and that Willis

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1 aided in the commission of the crime by maintaining a stash house in the lower 2 apartment, by manufacturing cocaine base (a necessary ingredient of which is 3 cocaine powder) with the tools of the trade found exclusively in the lower 4 apartment, and by keeping firearms there to protect the enterprise. See United 5 States v. Santos, 541 F.3d 63, 72 (2d Cir. 2008) (explaining that “advancing the aim 6 of a narcotics conspiracy can involve performing ancillary functions”); United 7 States v. Boissoneault, 926 F.2d 230, 234 (2d Cir. 1991) (noting that evidence of 8 intent may be found in the “paraphernalia usually possessed by drug dealers” or 9 the “materials needed to process cocaine or to package it”). The government also 10 presented evidence that Pierce was arrested driving a car registered to Willis, the 11 keys of which were linked to the multi-key ring that also opened the upper 12 apartment. On the basis of these facts, we conclude that a rational jury could 13 conclude that Willis aided and abetted Pierce’s possession of cocaine powder 14 with intent to distribute it. 5

5 Any arguable inconsistency between the jury’s conclusion that the government had not established a conspiracy beyond a reasonable doubt and the jury finding that Willis aided and abetted Pierce does not change this conclusion. See Dunn v.

United States, 284 U.S. 390, 393 (1932) (“Consistency in the verdict is not necessary.”); see also United States v. Carbone, 378 F.2d 420, 422 (2d Cir. 1967) (discussing Dunn); United States v. Tyler, 758 F.2d 66, 70-71 (2d Cir. 1985) (noting that “there is nothing inconsistent in our determination that the evidence was insufficient with respect to the conspiracy

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1 II

2 Both defendants were convicted under Count 6 for maintaining a premises 3 where drugs were manufactured or distributed. See 21 U.S.C. § 856(a)(1). To 4 convict under this statute, the government was required to prove that the 5 defendants “(1) used a place; (2) for the purpose of distributing or packaging 6 controlled substances; and (3) did so knowingly.” Facen, 812 F.3d at 290. 7 The government adduced sufficient evidence that both defendants 8 violated this provision. That evidence established that Willis possessed the 9 cocaine powder and cocaine base as well as cutting agents, packaging materials, 10 and firearms found at 70 Henrietta. That evidence also established that Pierce 11 possessed powder cocaine, cocaine base, heroin, and fentanyl at that location and 12 that the upper apartment contained little else but this contraband. Indeed, the 13 evidence strongly supported an inference that the apartment was used for little 14 else than for distributing and packaging narcotics. The seized narcotics and drug 15 paraphernalia were in sufficient quantity for the jury to conclude that the 16 defendants intended to distribute them.

count but sufficient with respect to the aiding and abetting count” because the “two offenses are separate and distinct”).

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1 III

2 To convict for possession of a firearm in furtherance of a drug trafficking 3 offense under 18 U.S.C. § 924(c), “the government must prove that the defendant 4 possessed the firearm and that the possession occurred in furtherance of a drug 5 trafficking crime.” See United States v. Albarran, 943 F.3d 106, 118 (2d Cir. 2019). 6 Section 924(c) requires the government to establish a “nexus” between the 7 charged firearm and the charged drug selling operation. United States v. Finley, 8 245 F.3d 199, 203 (2d Cir. 2001). That nexus is established where the firearm 9 “afforded some advantage (actual or potential, real or contingent)” to the drug 10 trafficking. United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005). Section 11 924(c)(1)(A) applies where the charged weapon is readily accessible to protect 12 drugs, drug proceeds, or the dealer himself. See id. at 323. We conclude that the 13 evidence of guilt on this Count was sufficient as to both defendants. 14 Regarding Willis, a semi-automatic rifle—attributed to him as a likely 15 match by DNA evidence—was concealed in a box by the front door of the lower 16 apartment. A loaded .357 caliber Magnum pistol was found under a couch 17 cushion, and Willis’s DNA generated a likely match. Both weapons were readily 18 accessible to protect the contraband. While Willis argues that he could have

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1 possessed the weapons for purposes other than drug trafficking, the combination 2 of drugs and tools of the drug trade in the lower apartment, and the fact that 3 Willis lived elsewhere, provide adequate support for the jury’s verdict that the 4 firearms were used in furtherance of drug trafficking. 5 Regarding Pierce, a loaded Ruger handgun—attributed to him as a likely 6 match by DNA evidence—was found inside the padlocked upper apartment 7 room to which he held the key. This loaded handgun was readily accessible to 8 protect the powder cocaine, cocaine base, heroin, and fentanyl found near the 9 gun. Notably, Pierce did not live where the weapons were located and kept them 10 at an apartment that served as a stash house. Because the weapons were readily 11 accessible to protect drugs or drug proceeds, a rational trier of fact could have 12 found that Pierce was guilty of possessing a weapon in furtherance of drug 13 trafficking.

14 IV

15 A. Evidentiary and Summation Challenges

16 Defendants argue that the district court abused its discretion in certain of 17 its evidentiary rulings. They argue that it was error for the district court to allow 18 a DEA witness to present expert testimony concerning the “means and methods

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1 of drug trafficking” and then to permit the testimony of the parole officers of 2 Willis and Pierce which, according to them, served no purpose other than 3 underscoring their prior convictions. Finally, they contend that the district court 4 improperly allowed the prosecutors to excessively compliment the investigating 5 officers during closing arguments, thereby allowing the government to 6 “improperly invite[] the jury to help law enforcement solve the drug problem.” 7 Pierce Br. at 51-52. Defendants assert that this trio of errors combined to deny 8 them a fair trial. Defendants’ challenges are without merit. 9 We review the district court’s evidentiary rulings for abuse of discretion. 10 See United States v. Fazio, 770 F.3d 160, 165 (2d Cir. 2014). “[S]o long as the district 11 court has conscientiously balanced the proffered evidence’s probative value with 12 the risk for prejudice, its conclusion will be disturbed only if it is arbitrary or 13 irrational.” United States v. Scully, 877 F.3d 464, 474 (2d Cir 2017). 14 When parties seek to introduce expert testimony in accordance with Rule 15 702 of the Federal Rules of Evidence, the trial judge has “the task of ensuring that 16 an expert’s testimony both rests on a reliable foundation and is relevant to the 17 task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). The 18 district court must analyze whether the proffered expert testimony is relevant

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1 and “whether the proffered testimony has a sufficiently reliable foundation to 2 permit it to be considered.” United States v. Cruz, 363 F.3d 187, 192 (2d Cir. 2004). 3 “A district court’s decision to admit expert testimony will not be reversed unless 4 it is manifestly erroneous.” Boissoneault, 926 F.2d at 232. 5 Over Pierce’s objection, the government proffered that it intended to ask 6 Special Agent James McHugh, a DEA expert witness, whether certain items 7 found at 70 Henrietta were “the kinds of paraphernalia or tools that are typically 8 found in the possession of people who are distributing narcotics.” Doc. 201 at 9 205. The district court ruled that the expert witness could testify only “in general 10 terms,” about those items but could not review photos of or testify about the 11 actual paraphernalia found at 70 Henrietta. Doc. 201 at 206; see United States v. 12 Nersesian, 824 F.2d 1294, 1308 (2d Cir. 1987). 13 When testifying, the government’s witness stayed within these bounds. 14 The government asked whether items like “whisks, sifters, and mixers [] have 15 any role [in] narcotics trafficking,” and the witness confirmed that these were 16 “typical tools” of the trade. Doc. 201 at 212-13. Further, the witness testified that 17 references to “stamps” in text messages could refer to packaging for cocaine or 18 heroin.

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1 We are cautious of “the risk that ‘dual’ police testimony may prejudice 2 defendants at trial, both inflating an officer’s expert opinions through his 3 personal involvement in the case and bathing his lay testimony in the aura of 4 ‘expertise’.” Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 HARV. 5 L. REV. 1995, 2025 (2017); see United States v. Dukagjini, 326 F.3d 45, 53-54 (2d Cir. 6 2003). Here, however, McHugh was not such a witness. While he described the 7 significance of language and physical evidence in the abstract, he drew no 8 specific conclusions about the significance of that conduct or of the language in 9 this particular case, which weakens any claim of prejudice. We conclude that the 10 district court did not err in admitting McHugh’s testimony. 11 Nor was it manifestly erroneous for the district court to admit testimony 12 from defendants’ parole officers. The government justified the need for the 13 testimony on the theory that the parole officers were familiar with the 14 defendants’ familial relationships and their living situations. At trial, Parole 15 Officer McPartland testified to the familial relationship between Pierce and the 16 leaseholder at 70 Henrietta, Pierce’s nickname “Zeke,” Pierce’s long-term 17 relationship with his girlfriend Courtney Brouse, and the fact that Pierce lived 18 with Brouse at 369 Wabash.

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1 Defendants objected on the grounds that the testimony “underscor[ed] 2 their prior convictions,” “was of minimal value,” and was merely cumulative. 3 Pierce Br. at 51, 55. Although the testimony may well have reminded the jury 4 that the defendants had prior criminal convictions, any prejudice was minimal. 5 The jury already knew that the defendants were predicate felons because they 6 had stipulated to those prior convictions. Moreover, the testimony did have 7 probative value. It was probative of Pierce’s relationship to individuals directly 8 connected to 70 Henrietta, and of Pierce’s nickname, “Zeke” which appeared in 9 multiple text messages discussing drug transactions, and the district court 10 weighed the evidence’s risk of prejudice with its probative value. Pierce asserts 11 that this information “came in through other witnesses anyway,” but does not 12 provide any record support for the assertion. Pierce Br. at 55. In any event, a 13 mere showing “of some alternative means of proof” is insufficient to establish an 14 abuse of discretion. Old Chief v. United States, 519 U.S. 172, 183 n. 7 (1997). 15 Finally, the defendants’ challenge to the government’s summation likewise 16 fails. Defendants assert that it was inappropriate for the government to comment 17 on the “dedication and perseverance of the Erie County Sheriff’s office detectives 18 working to get [] weapons and [] addictive drugs … out of the community” and

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1 to reference the detectives “chas[ing] down all sorts of leads, every red herring, 2 until the last pieces of the puzzle came together and the picture was clear.” Gov’t 3 App’x at 83–84. 4 “A defendant asserting that a prosecutor’s remarks warrant a new trial 5 faces a heavy burden, because the misconduct alleged must be so severe and 6 significant as to result in the denial of his right to a fair trial.” United States v. 7 Banki, 685 F.3d 99, 120 (2d Cir. 2012). “In determining whether an inappropriate 8 remark amounts to prejudicial error, we look to the severity of the misconduct, 9 the measures adopted to cure the misconduct, and the certainty of conviction 10 absent the misconduct.” United States v. Caracappa, 614 F.3d 30, 41 (2d Cir. 2010). 11 Because the defendants did not object to any of the summation at trial, their 12 challenge is subject to plain error review. See FED. R. CRIM. P. 52(B). 13 Applying these principles, we see no error and certainly no plain error. 14 The defendants have not demonstrated that any of these remarks were 15 sufficiently improper to have denied them a fair trial. In other words, this is not 16 the “rare case in which [alleged] improper comments in a prosecutor’s

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1 summation are so prejudicial that a new trial is required.” United States v. 2 Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992). 6

3 B. Rehaif-related Section 922(g) Challenges

4 Defendants argue that their convictions as felons in possession of firearms 5 under 18 U.S.C. § 922(g) must be vacated in light of the Supreme Court’s decision 6 in Rehaif v. United States, 139 S. Ct. 2191 (2019). There, the Court held that a 7 defendant’s knowledge of his status as a felon is an element of the offense and 8 that the government bore the burden of proving that knowledge. Id. at 2194. 9 Rehaif was decided after their convictions and the issue reaches us on plain error 10 review. 11 Subsequent to Rehaif, this Court decided United States v. Miller, et al., 954 12 F.3d 551 (2d Cir. 2020) and United States v. Balde, 943 F.3d 73 (2d Cir. 2019). Both 13 cases effectively foreclose the defendants’ attacks on their convictions. When

6 Pierce also raises various issues relating to the effectiveness of his trial counsel.

Though it is not a rigid rule, this circuit has a “baseline aversion to resolving ineffectiveness claims on direct appeal.” United States v. Leone, 215 F.3d 253, 256 (2d Cir.

2000). We do not believe that the record is sufficiently developed for us to appropriately assess Pierce’s ineffective assistance of counsel claim. We thus refrain from deciding it and Pierce is free to raise the claim in a petition for habeas corpus under 28 U.S.C. § 2255. See United States v. Oladimeji, 463 F.3d 152, 154 (2d Cir. 2006).

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1 reviewing for plain error, we consider whether “(1) there is an error; (2) the error 2 is clear or obvious, rather than subject to reasonable dispute; (3) the error affected 3 the appellant’s substantial rights; and (4) the error seriously affects the fairness, 4 integrity or public reputation of judicial proceedings.” United States v. Miller, 954 5 F.3d 551, 557–58 (2d Cir. 2020). Here, it is undisputed that the first two elements 6 of the plain error test were met. The jury was not instructed consistent with 7 Rehaif, and that was clearly error. We need not reach the third element – whether 8 the error affected the appellant’s substantial rights – since we conclude that the 9 fourth element was not met; the error did not affect the fairness, integrity or 10 public reputation of the judicial proceedings. 7 11 In Miller, this Court held that the erroneous jury instruction was not 12 reversible plain error because the defendant’s PSR revealed that he was

7 Defendants’ Rehaif-related jurisdictional challenge to the superseding indictment also fails. Federal courts have jurisdiction to adjudicate a criminal charge as long as “the indictment alleges an offense under U.S. criminal statutes.” United States v. Prado, 933 F.3d 121, 134 (2d Cir. 2019). “[T]he standard for the sufficiency of an indictment is not demanding,” Balde, 943 F.3d at 89, and requires little more than that the indictment “track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime,” United States v. Stringer, 730 F.3d 120, 124 (2d Cir. 2013).

The superseding indictment here, which tracks the language of § 922(g)(1), plainly meets this standard. See Balde, 943 F.3d at 89–91 (holding that an indictment tracking the statutory language of § 922(g)(5)(A) remains jurisdictionally sufficient after Rehaif).

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1 sentenced to, and served, more than one year in prison for a prior felony 2 conviction. 954 F.3d at 559-60. In this case, it is undisputed that both defendants 3 were sentenced to, and served, more than one year in prison for their prior 4 felony convictions. Their stipulations to that fact conclusively prove that they 5 knew of their status. See id. at 560 (noting that “had the Rehaif issue been foreseen 6 by the district court, [defendant] would have stipulated to knowledge of his 7 felon status to prevent the jury from hearing evidence of his actual sentence”). 8 Therefore, the district court’s erroneous jury instruction on this issue was not 9 plain error.

10 V

11 A. Guidelines Calculation

12 Willis contends that the district court erroneously calculated his 13 Guidelines range when it found that, although he had been acquitted of the 14 conspiracy and most substantive narcotics possession counts, Counts 3, 4, 10, and 15 11, he nonetheless, for sentencing purposes, possessed all the narcotics seized 16 from 70 Henrietta and 45 Elm because he participated in jointly undertaken 17 criminal activity with Pierce. Specifically, Willis argues that the government 18 failed to meet its burden of proving jointly undertaken criminal activity between

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1 Willis and Pierce by a preponderance of the evidence and that this failure was 2 conspicuous insofar as the district court rested its finding on its conclusion that 3 Willis possessed the drugs found at 45 Elm. 4 This Court has recognized that to hold the defendant accountable for 5 jointly undertaken criminal activity, the district court must make two findings: 6 “1) that the acts were within the scope of the defendant’s agreement and 2) that 7 they were foreseeable to the defendant.” United States v. Studley, 47 F.3d 569, 574 8 (2d Cir. 1995). When applying these requirements, district courts look to (1) 9 “whether the participants pool[ed] their profits and resources, or whether they 10 work[ed] independently”; (2) “whether the defendant assisted in designing and 11 executing the illegal scheme”; and (3) “what role the defendant agreed to play in 12 the operation, either by an explicit agreement or implicitly by his conduct.” Id. at 13 575 (emphasis in original). 14 A court may consider as “relevant conduct” drugs distributed by co- 15 conspirators in the course of the conspiracy even where a defendant is acquitted 16 of a drug conspiracy. United States v. Bell, 795 F.3d 88, 105-06 (D.C. Cir. 2015); but 17 see United States v. Bell, 808 F.3d 926, 927 (D.C. Cir. 2015) (Kavanaugh, J.) 18 (“Allowing judges to rely on acquitted or uncharged conduct to impose higher

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1 sentences than they otherwise would impose seems a dubious infringement on 2 the rights to due process and to a jury trial.”). Acquitted conduct may be 3 considered by the sentencing court so long as it is based on reliable information 4 and is proven by a preponderance of the evidence. See United States v. Reese, 33 5 F.3d 166, 174 (2d Cir. 1994); United States v. Romano, 825 F.2d 725, 728 (2d Cir. 6 1987). 7 Willis’s contention that the district court improperly relied on the narcotics 8 allegedly recovered by law enforcement at 45 Elm—and which he was acquitted 9 of possessing—to find that he and Pierce engaged in jointly undertaken criminal 10 activity has merit. 8 Detective Carney testified that he and Detective Daniel 11 Granville entered the interview room and “located the narcotics on the floor … 12 on the side of the desk that Mr. Willis was sitting on” inside a “plastic baggy 13 [that] appeared to have human feces on it.” Willis App’x at 70. The detectives, 14 however, did not submit the bag for DNA testing. And though Detective Carney

8 Specifically, Detective Carney testified that he recovered about 3.08 grams of cocaine base and about 1.32 grams of heroin in yellow glassine envelopes—which were found only in the upper apartment attributed to Pierce—on the floor of the interview room where Willis was detained after arrest that appeared to have human feces on it.

Likewise, Detective Donovan testified that Pierce left cocaine base in blue glassine envelopes in his separate interview room, which matched the envelopes found in the lower apartment to which Willis held keys. Detective Donovan did not testify that the recovered contraband appeared to have feces on it.

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1 testified that “the interview room that Mr. Willis was placed in has a video 2 camera,” it was apparently set to live feed and made no recording. Doc. 198 at 91. 3 Detective Carney further testified that after he and Detective Granville recovered 4 the drugs, he obtained a search warrant for the lower apartment at 3:35 PM and 5 then went on to execute the search warrant. But the search warrant application 6 submitted by Detective Carney did not include the fact that Willis dropped 7 drugs in the interview room. Doc. 34, Exh. A. 8 Additional record evidence renders this testimony implausible, including 9 the fact that no drugs were found on either defendant when they were searched 10 at the time of their arrest. Furthermore, Willis was apparently found to have had 11 drugs concealed in his body despite the fact that there was no particular reason 12 for him to go to such lengths to hide any drugs he was carrying while driving 13 around the neighborhood; that each defendant independently decided to extract 14 and discard these drugs while handcuffed in an isolated police station interview 15 room makes this set of events all the less likely. More unlikely still that each 16 defendant had drugs matching only the packaging found in the apartment to 17 which he was less strongly linked.

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1 In a footnote, the district court stated that “even though the evidence may 2 not have met the standard of beyond a reasonable doubt, it did constitute proof 3 by a preponderance of the evidence.” Willis App’x at 135 n. 2. But the district 4 court did not say why. In failing to do so, the district court did not account for 5 the gaps in the government’s evidence. See Menefee, 391 F.3d at 164 (“We have 6 found a district court’s factual findings to be clearly erroneous where the court 7 has failed to synthesize the evidence in a manner that accounts for conflicting 8 evidence or the gaps in a party’s evidentiary presentation.”). It was therefore 9 clearly erroneous for the district court to rely on the drugs found at 45 Elm to 10 conclude that a preponderance of the evidence establishes that Willis conspired 11 with his co-defendant Pierce to possess with intent to distribute and to distribute 12 the drugs found upstairs at 70 Henrietta Avenue. In failing to account for the 13 gaps in the government’s evidentiary presentation for this acquitted conduct, the 14 district court erred in cross-attributing the drugs found in the upper apartment 15 when it sentenced Willis. The error requires a remand for resentencing and 16 reconsideration of whether the government met its burden of proving jointly 17 undertaken criminal activity between Willis and Pierce by a preponderance of 18 the evidence, and if so, the scope of that activity.

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1 B. Concurrent Sentencing

2 Guidelines § 5G1.3(c), provides that if “a state term of imprisonment is 3 anticipated to result from another offense that is relevant conduct to the instant 4 offense of conviction . . . the sentence for the instant offense shall be imposed to 5 run concurrently to the anticipated term of imprisonment.” U.S.S.G. § 5G1.3(c). 6 Section 5G1.3(c) applied to Willis’s federal sentencing. A state term of 7 imprisonment was anticipated to result from his pending New York weapons 8 possession charges and although at sentencing the district court acknowledged 9 that this conduct was relevant it failed to explicitly rule whether Willis’s federal 10 sentence would run concurrently. Because section 5G1.3(c) was a pertinent 11 Sentencing Commission policy statement, the district court was required to take 12 it into account. United States v. Cavera, 550 F.3d 180, 188–89 (2d Cir. 2008) (en 13 banc) (citing 18 U.S.C. § 3553(a)(5)). But the only reference to whether Willis’s 14 sentence would run concurrently came from Willis’s counsel who stated on the 15 record that he understood that Willis’s seven-year state sentence was “going to 16 run concurrent to whatever” sentence the district court imposed. Willis App’x at 17 157. Nowhere did the district court express a contrary intention; nevertheless, 18 neither the transcript nor the written judgment confirms counsel’s understanding

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1 that the sentence would be concurrent. Therefore, Willis’s sentence is remanded 2 to the district court to expressly rule whether the sentence will run concurrently 3 with his state sentence.

4 CONCLUSION

5 For the reasons stated herein, the judgment of the district court is 6 AFFIRMED in part and VACATED in part. Willis’s sentence is remanded for 7 resentencing and clarification.