United States v. Ocean

United States Court of Appeals For the First Circuit Nos. 16-2468; 17-1183

UNITED STATES OF AMERICA,

Appellee,

v.

AKEEN OCEAN; JERMAINE MITCHELL,

Defendants, Appellants.

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

[Hon. John A. Woodcock, U.S. District Judge]

Before

Howard, Chief Judge, Kayatta, Circuit Judge, and Torresen, Chief U.S. District Judge.

Merritt Schnipper, with whom Schnipper Hennessy was on brief, for appellant Ocean. Seth Kretzer, with whom Law Offices of Seth Kretzer was on brief for appellant Mitchell. Renee M. Bunker, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

September 11, 2018

 Of the District of Maine, sitting by designation.

TORRESEN, Chief District Judge. Following a joint jury trial,

Akeen Ocean and Jermaine Mitchell were convicted of a conspiracy

to distribute and possess with intent to distribute cocaine base,

in violation of 21 U.S.C. §§ 846 and 841(a)(1). The district court

sentenced Ocean to 120 months imprisonment with three years of

supervised release and Mitchell to 260 months imprisonment with

five years of supervised release. On appeal, Ocean claims that:

(1) there was insufficient evidence to convict him of the charged

conspiracy; (2) the admission of recorded jailhouse conversations

he had with a girlfriend who cooperated with the Government

violated his Sixth Amendment right to counsel; and (3) the

sentencing judge erred in calculating his drug quantity. Mitchell

argues that allowing two law enforcement witnesses to testify that

a particular substance was crack cocaine was both evidentiary error

and a violation of his Sixth Amendment right to confrontation.

Finding no merit in any of the appellants' claims of error, we

affirm both convictions and Ocean's sentence.

I. Akeen Ocean

A. Sufficiency of the Evidence

Because Ocean raised his sufficiency objection in a Rule 29

motion, the standard of review is de novo. United States v.

Ramírez-Rivera, 800 F.3d 1 , 16 (1st Cir. 2015). In considering

the totality of the direct and circumstantial evidence, we draw

all inferences in favor of the government and consistent with the

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verdict, and "we will reverse only if the verdict is irrational."

Id. (quoting United States v. Brandao, 539 F.3d 44 , 50 (1st Cir.

2008)). Here, we recount the facts against Ocean on the conspiracy

count in the light most favorable to the verdict. United States

v. Rodriguez, 162 F.3d 135 , 140 (1st Cir. 1998). We address the

facts pertinent to other claims later in the opinion.

Count One of the Indictment alleged that between January 1,

2010 and August 30, 2013 in the District of Maine, Defendants

Mitchell and Ocean, along with Jeffrey Benton, Christian Turner,

Willie Garvin, Torrence Benton, Jeremy Ingersoll-Meserve,

Jacqueline Madore, David Chaisson, Burke Lamar, and Wendell White,

conspired to distribute and possess with the intent to distribute

280 grams or more of cocaine base.

1. Factual Background

The evidence at trial established that Defendant Mitchell

oversaw the distribution of crack cocaine that was being

transported from New Haven, Connecticut to Bangor, Maine. Mitchell

was assisted in the Bangor area by Christian Turner and a man named

Rodrigo.

The distribution of the crack in and around Bangor depended

on a network of local addicts, including Defendant Ocean, his

girlfriend Christie, and others. For every four or five grams of

crack sold, each addict would earn a gram of crack for personal

use. The going rate to the addicts was about $100 per gram of

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crack. By selling the crack to their friends and acquaintances,

the addicts provided the customer base for the operation and were

able to support their own habits.

Mitchell operated out of Christie's apartment on Court Street

in Bangor for two or three months in 2011. Mitchell then installed

Rodrigo at the Court Street apartment so that Mitchell could tend

to business elsewhere. Rodrigo assumed the role of doling out the

crack to the addict-dealers and collecting the money from them.

Mitchell came by frequently to collect the proceeds. During this

period, Ocean was staying several nights a week at Christie's

place.

Ocean was not pleased when Rodrigo moved into Christie's

apartment because he thought it would attract the attention of law

enforcement. Despite his displeasure with the arrangement, Ocean

continued to purchase crack from Rodrigo. Rodrigo testified that

Ocean was "high all the time, but he . . . also brought me a lot

of . . . clientele. He helped me out a lot." Because Ocean did

not like people coming to the residence, he conducted his sales

away from the Court Street apartment. By Christie's estimate,

during the five or six months that Rodrigo was at her residence,

Ocean purchased about 100 grams of crack from him. Three witnesses

testified that they purchased crack from Ocean, with one witness

estimating that he purchased approximately 40-50 grams of crack

from Ocean between 2010 and 2013.

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Christie, who was not initially happy about Rodrigo living at

her apartment, grew even more tired of him after he began to short

her and deal directly to her customers. Rodrigo testified that at

some point Christie stopped coming home because she owed him and

other distributors money. Eventually, Rodrigo moved out of the

apartment and set up shop at the homes of other conspirators.

Ocean continued to help Rodrigo after he moved out. Rodrigo

testified that Ocean also bought crack directly from Turner from

time to time.1

The New Haven police conducted a taped interview with Ocean

in September of 2014. The recording was played at trial, and it

corroborated much of the witnesses' testimony. In that interview,

Ocean admitted that he had dealt with Rodrigo and Turner in Bangor

for about eighteen months in 2010 and 2011. He told the detectives

that his girlfriend introduced him to Rodrigo who was staying with

her. He explained that he was a "middleman" "running to support

my habit." He stated that the amounts he would buy from Rodrigo

would vary anywhere from two to twenty grams in a day. Although

he was not as familiar with Turner, Ocean acknowledged that he had

met him and that he could call Turner if Rodrigo was out of product.

Ocean described a falling-out with Rodrigo after Rodrigo stole

1 The supply chain was not always static. One witness who regularly purchased crack from Ocean recalled a time when he obtained crack from Mitchell to sell to Ocean.

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from him. He admitted that he knew others who were involved from

Bangor, including Madore and a woman named Fern. He claimed that

he was not "in the loop" with Rodrigo and Turner, and he denied

ever traveling to Connecticut to reup with them. He summed up his

involvement like this: "I bought drugs from them and kept it

moving."

Finally, in recorded jailhouse conversations also admitted at

trial, Ocean, apparently referring to his interview with the New

Haven detectives, told Christie:

I said if that's what you call it, yeah I was a middleman. . . . I say yeah, I might have got some money out, I might have got a couple of dollars out of it, I might have got some crack, that's where I fucked up.

2. Analysis

In framing his sufficiency challenge, Ocean concedes that the

evidence established a conspiracy to distribute cocaine base from

New Haven to Bangor and that he participated in a branch of this

venture. He claims that the government alleged a hub and spoke

conspiracy around Mitchell and Benton and argues that because he

had little interaction with either of them, there was insufficient

evidence to support his conspiracy conviction. He argues that the

evidence was insufficient to show that he joined the conspiracy or

shared the conspirators' goals because he sold drugs only to feed

his addiction, did not provide the type of support services that

other coconspirators did, and was indifferent to the goals of the

conspiracy and hostile to Rodrigo.

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Although he never uses the term "variance," Ocean's opening

brief reads like a variance argument, i.e., that Ocean's activities

were not part of the broader charged conspiracy but some other

conspiracy. Ocean follows the typical analysis for a variance

claim, addressing the factors of commonality, overlap, and

interdependence. See United States v. Ortiz-Islas, 829 F.3d 19 ,

24 (1st Cir. 2016) (in determining whether evidence is sufficient

to show a single conspiracy, rather than several, courts look to

"(1) the existence of a common goal, (2) overlap among the

activities' participants, and (3) interdependence among the

participants" (quoting United States v. Paz-Alvarez, 799 F.3d 12 ,

30 (1st Cir. 2015))).

Not surprisingly, the Government responds by arguing that

there was no variance between the crime charged and the one proved

at trial. The Government points out that the Indictment did not

charge a broader "New Haven-to-Bangor" conspiracy but merely

charged a conspiracy to distribute cocaine base in the District of

Maine. Further, the Government counters, there was no allegation

that this was a hub conspiracy centered on Mitchell and Benton,

and in fact the charged conspiracy was either a hub with Rodrigo

at its center or a chain conspiracy. Either way, the Government

claims, it introduced sufficient evidence to convict Ocean of the

charged conspiracy.

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In his reply brief, Ocean clarifies something that he had

hinted at in his opening brief. His claim is not just that the

evidence was insufficient to establish that he participated in the

broader conspiracy involving Mitchell and sources in Connecticut.

His claim is that because he did not share the goals of any of the

conspirators, he therefore could not have been convicted of either

the broader "New Haven-to-Bangor" conspiracy or the narrower

conspiracy in Bangor.

We agree with the Government that it was not required to prove

that Ocean was a participant in a broader conspiracy to distribute

drugs from Connecticut. That is not what the Indictment charged.

Moreover, viewing the record in the light most favorable to the

verdict, we find ample evidence that Ocean did participate in the

charged conspiracy.

To prove a conspiracy, the evidence must show:

(1) the existence of a conspiracy, (2) the defendant's knowledge of the conspiracy, and (3) the defendant's knowing and voluntary participation in the conspiracy. "Under the third element, the evidence must establish that the defendant both intended to join the conspiracy and intended to effectuate the objects of the conspiracy."

United States v. Paz-Alvarez, 799 F.3d 12 , 21 (1st Cir. 2015)

(quoting United States v. Dellosantos, 649 F.3d 109 , 116 (1st Cir.

2011) (internal citation omitted)). It is not necessary to "prove

that each defendant knew all of the details and members, or

participated in all of the objectives, of the conspiracy as long

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as [the government] can show knowledge of the basic agreement."

United States v. Brandon, 17 F.3d 409 , 428 (1st Cir. 1994).

Defendant Ocean concedes that a conspiracy existed and that

he knew of it. He contends, however, that the Government fell

short on the third element. We address Ocean's contentions that

he did not participate in the conspiracy because he sold crack

only to feed his addiction, his role was limited to reselling

crack, and he was indifferent to the goals of the conspiracy and

hostile to Rodrigo and others.

The fact that Ocean sold largely to feed his addiction rather

than to line his pocket does not mean that Ocean did not intend to

distribute drugs to others. The fact that a conspirator prefers

his spoils in product rather than cash provides no defense to a

charge of a drug distribution conspiracy. The question is whether

there was evidence that Ocean intended to distribute the drugs in

Maine. This conspiracy depended on addict-dealers who agreed to

sell four or five grams in order to obtain one gram for their

personal use. The structure incentivized the addicts to sell as

much as possible to increase the amount available for their own

consumption. The evidence at trial showed that Ocean was more

than a mere end-user. Ocean purchased and distributed drugs for

a period of about a year and a half, and he purchased as much as

20 grams in a day. Although Ocean was on the lower rungs of the

organization and he happened to be a user, the evidence established

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that Ocean willingly helped out-of-state distributors move their

product in the Bangor area. It has long been established in this

circuit that individuals who seek to "further[] the distribution

of cocaine" share a "common goal." United States v. Bedini, 861

F.3d 10 , 14-15 (1st Cir. 2017); Ortiz-Islas, 829 F.3d at 25

("existence of a common goal[] is broadly drawn and . . . satisfied

by evidence of a shared interest in furthering the distribution of

drugs" (internal quotation marks omitted)).

Ocean also claims that his limited role in the conspiracy and

the fact that he did not engage in transporting or housing other

conspirators shows that he was not a part of the conspiracy. Ocean

concedes that he purchased crack from Rodrigo and Turner and sold

it to his own customers. That conduct was his involvement, and

through it he knowingly facilitated the conspiracy to distribute

crack in Bangor. It is not "necessary that each coconspirator

participate in every aspect of the conspiracy." United States v.

Mangual-Santiago, 562 F.3d 411 , 422 (1st Cir. 2009).

Ocean argues that he could not have shared the goals of

Mitchell and Rodrigo because he was hostile to their tactics.

Ocean highlights evidence of his displeasure with Rodrigo moving

into Christie's apartment and poaching her clients. He notes that

three individuals initially purchased cocaine base from him and

then started buying directly from Rodrigo, suggesting that Rodrigo

stole his clients too. But there was evidence that Ocean continued

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to do business with Rodrigo even after Rodrigo moved out of

Christie's apartment. Despite his misgivings about some of the

tactics used by Rodrigo, Ocean was willing to stay connected to

him. "It is not far-fetched to assume that shifting alliances and

spouts of deception among members of [a drug trafficking

conspiracy] would be par for the course and, importantly, would

not necessarily undermine the overarching goals of the

conspiracy." United States v. Belanger, 890 F.3d 13 , 31 (1st Cir.

2018); see also United States v. Negrón-Sostre, 790 F.3d 295 , 309-

10 (1st Cir. 2015) (that individuals resolved their conflict in

favor of continued drug distribution indicated interdependence).

Ocean admitted he purchased drugs from Rodrigo and Turner and

described himself as a "middleman" who "bought drugs" and "kept it

moving." Ocean's own words are likely the best evidence that he

intended to join the conspiracy and shared its goals, but the

testimony of his coconspirators corroborated his account.

Christie estimated that in the course of about five to six months,

Ocean purchased about 100 grams of crack from Rodrigo and that he

sold the drugs to his own customers. Rodrigo testified that Ocean

brought him a lot of clientele. At least three witnesses testified

that they had purchased crack from Ocean, with one estimating that

over the course of the conspiracy he purchased 40-50 grams of crack

from Ocean.

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The record contains sufficient evidence for a jury to conclude

that Ocean intended to join the conspiracy and intended to

effectuate its goals. Because the verdict is amply supported, the

sufficiency challenge fails.

B. Massiah Claim

Ocean's second challenge to his conviction involves the

admission of his recorded jailhouse conversations with Christie.

On June 14, 2016, after jury selection but before the start of the

trial, the prosecution learned that Christie had been meeting with

Ocean at the Somerset County Jail. On June 17, 2016, the

Government filed a supplemental trial brief stating it would

introduce five of the intercepted conversations between Christie

and Ocean at trial.

Ocean objected to the admission of this evidence on the

grounds that it violated his Sixth Amendment rights under Massiah

v. United States, 377 U.S. 201 , 206 (1964). The trial court

allowed the parties to conduct a voir dire of Christie to develop

evidence of whether she had been acting at the Government's

direction when she met and talked with Ocean in the months before

the trial.

During voir dire, Christie testified that she participated in

a proffer with a prosecutor at the United States Attorney's Office

in Bangor on August 11, 2014. Based on her proffer, the Government

extended use immunity to Christie on September 17, 2014, and she

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testified before the grand jury that day. In June of 2016, the

Government served Christie with a trial subpoena, and she met with

federal prosecutors on June 15, 2016, shortly before the trial

began. Between September 17, 2014 and June 15, 2016, Christie had

no contact with any representative of the United States Attorney's

Office. And, other than being served a trial subpoena, she had no

contact with anybody from the investigating agency during that

period.

At some point in early 2016, Christie was in the Somerset

County Jail on a burglary charge and she realized that Ocean was

also at the jail. Christie managed to give Ocean her phone number,

and he began to call her after she got out of jail. Christie

reached out to Ocean because he was a friend of hers: "We have

past. I care about him. It didn't seem to be a problem to me."

In a recorded call from April 15, 2016, Ocean told Christie to

come see him at the jail on Sunday, and she agreed that she would.

Christie stated that she did not go see Ocean because the

Government asked her to see him, and she did not tell the

Government that she had talked to Ocean.

After the voir dire, the trial judge found that there was no

evidence that the Government instructed Christie to contact Ocean

and no indication that she was acting on behalf of the Government.

"There's no indication of any conversation with the police from

which I could even begin to infer that she was acting as a

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government agent." Based on these findings, the trial judge

rejected Ocean's claim of a Massiah violation. We review the trial

judge's findings of fact for clear error, and we find none. See

United States v. Nascimento, 491 F.3d 25 , 50 (1st Cir. 2007). We

review de novo his constitutional conclusion based on the facts as

the trial judge found them. Id.

The Sixth Amendment provides, in pertinent part, that "the

accused shall enjoy the right . . . to have the Assistance of

Counsel for his defense." U.S. Const. amend. VI. The right to

counsel attaches upon the start of criminal judicial proceedings.

Brewer v. Williams, 430 U.S. 387 , 398 (1977); Roberts v. Maine, 48

F.3d 1287 , 1290 (1st Cir. 1995). Under the Massiah doctrine, the

Sixth Amendment right to counsel is violated when "evidence of

[the defendant's] own incriminating words, which federal agents

had deliberately elicited from him after he had been indicted and

in the absence of his counsel" are admitted during trial.2 Massiah,

2 Winston Massiah was indicted on a charge of possessing narcotics and released on bail. Massiah v. United States, 377 U.S. 201 (1964). Unbeknownst to Massiah, a co-defendant named Colson, also released on bail, began cooperating with the government. Law enforcement installed a radio transmitter under the front seat of Colson's car that allowed them to overhear conversations in the car from a distance. When Massiah had a conversation with Colson in his car, law enforcement overheard Massiah make several incriminating statements. At Massiah's trial, the law enforcement officer testified to the incriminating statements, and Massiah was convicted. The Supreme Court reversed, finding that the government's use of statements obtained by law enforcement under these circumstances violated the defendant's Sixth Amendment right to counsel.

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377 U.S. at 206. Deliberate elicitation occurs when the government

"intentionally creat[es] a situation likely to induce [a

defendant] to make incriminating statements without the assistance

of counsel." United States v. Henry, 447 U.S. 264 , 274 (1980).

"[A] successful Massiah objection requires a defendant to

show, at a bare minimum, that the person with whom he conversed

had previously been enlisted for that purpose by the authorities."

United States v. Wallace, 71 F. App'x 868 , 870 (1st Cir. 2003).

Which party initiated the meeting at which the government obtained

the statements is "not decisive or even important" to the Massiah

analysis. Maine v. Moulton, 474 U.S. 159 , 174 (1985). The

government has an "affirmative obligation not to act in a manner

that circumvents the protections accorded the accused." Id. at

176.

In Henry, relied on by the appellant, the Supreme Court found

that the government can "deliberately elicit" statements by

intentionally creating a situation likely to induce a defendant

into making incriminating statements. There, a paid informant

named Nichols was staying at the city jail where Henry had been

lodged on charges of bank robbery. 447 U.S. at 266. Nichols told

federal agents that he was sharing a cell with Henry, and the

agents instructed Nichols to keep his ears open but not to question

Henry about the robbery. Id. Ultimately, Henry made incriminating

statements to Nichols about his involvement in the robbery, and

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Nichols was allowed to testify about those statements at Henry's

trial. Id. at 267. The Supreme Court found three factors

important in its analysis of whether Henry's jailhouse statements

were deliberately elicited. Id. at 270. First, the government

had engaged Nichols as a paid informant for over a year and only

paid him for useful information; second, Henry was unaware that

Nichols was anything more than a fellow inmate; and third, Henry

was in custody and under indictment when Nichols engaged him in

conversation. Id. The Court concluded that the agents

"intentionally creat[ed] a situation likely to induce Henry to

make incriminating statements without the assistance of counsel,"

in violation of his Sixth Amendment rights. Id. at 274.

This case is a far cry from Henry, and it is distinguishable

on two of the factors mentioned above. First, although Ocean

contends on appeal that Christie was a government agent, the trial

judge found otherwise, and that finding is supported by the record.

The Government did not instruct Christie to visit Ocean or to

report back what she learned from him. Christie had no contact

with the Government between her testimony at the grand jury in

September of 2014 and June of 2016, when she was served with a

trial subpoena. Christie visited Ocean of her own volition because

he was a friend. She did not advise the Government that she had

visited him. Although Christie testified under a grant of

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immunity,3 there was no evidence of any agreement by her to elicit

information from Ocean or to work as a Government informant.

"[T]he Sixth Amendment is not violated whenever -- by luck or

happenstance -- the State obtains incriminating statements from

the accused after the right to counsel has attached." Kuhlmann v.

Wilson, 477 U.S. 436 , 459 (1986) (quoting Moulton, 474 U.S. at

176).

Beyond his claim that Christie acted as a government agent,

Ocean contends that the Government made him more susceptible to

self-incrimination by detaining him pretrial, thus creating this

situation and its consequences. Under this theory, however, any

pretrial detainee who has made an incriminating statement that

comes to the attention of authorities would be able to establish

a Sixth Amendment violation. Further, it was the court, and not

the Government, that made the decision to detain Ocean pending his

trial, and the court's decision to detain Ocean had nothing to do

with putting him in a position where he was more likely to

incriminate himself.

As for the second Henry factor, Ocean knew that Christie had

immunity and had been subpoenaed to testify in his trial. Neither

of the defendants in Henry or Massiah knew that he was speaking to

3 Though Christie had a proffer agreement and testified under a grant of immunity by the Government, she did not enter a cooperation agreement with the Government and was not charged federally in connection with the case.

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someone who had cooperated with the Government. See Henry, 447

U.S. at 272; Massiah, 377 U.S. at 206; see also United States v.

Payton, 615 F.2d 922 , 924 (1st Cir. 1980) ("unlike the situation

in Massiah . . . [the defendant] knew his interrogator was a

government agent"). Ironically, although Ocean complains that

Christie and the Government set him up, the transcripts reveal

that Ocean was attempting to convince Christie not to testify

against him. If anyone had a nefarious motive for the meeting

with Christie, it was Ocean, not the Government.

Where, as here, there is no evidence of an effort by the

Government to get incriminating statements from Ocean, the

Defendant has failed to make out a violation of his Sixth Amendment

rights. See Henry, 447 U.S. at 273 (citing Massiah, 377 U.S. at

206); see also Wallace, 71 F. App'x at 871 (jailhouse informant

had no "marching orders," and his testimony was therefore properly

admitted); Creel v. Johnson, 162 F.3d 385 , 394 (5th Cir. 1998)

(informant who told officials the location of victim's body not an

"agent of the state" where no evidence existed of benefit to her

or of control or direction by government). Because we find no

Sixth Amendment violation, there was no error in admitting these

statements.

C. Sentencing

Finally, Ocean challenges the district court's drug-quantity

calculations at sentencing. Appellate review of factual findings

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at sentencing is for clear error and review of the application of

the sentencing guidelines is de novo. United States v. Demers,

842 F.3d 8 , 12 (1st Cir. 2016). The government has the burden of

proving drug quantity by a preponderance of the evidence, and

courts must make a "reasonable approximation" of drug quantity,

which "need not be precise to the point of pedantry." Id. (quoting

United States v. Platte, 577 F.3d 387 , 392 (1st Cir. 2009)); United

States v. Doe, 741 F.3d 217 , 235 (1st Cir. 2013).

At sentencing, the judge set Ocean's base offense level at

30, accepting the probation office's conclusion that Ocean was

responsible for five grams, three days per week, for one year, for

a total of 780 grams. The probation office based its estimate on

Ocean's statement to the New Haven police that he obtained on

average 5-20 grams of crack daily for approximately twelve to

eighteen months.

Ocean challenges this calculation for failure to deduct the

cocaine base that he personally used from the total drug quantity.

The Government claims that because he withdrew this argument from

his sentencing memorandum, Ocean has waived it. See United States

v. Sánchez-Berríos, 424 F.3d 65 , 74 (1st Cir. 2005) ("A party

waives a right when he intentionally relinquishes or abandons

it."). In his sentencing memorandum, Ocean stated:

[t]he defendant has been provided with case law including the First Circuit Court of Appeals case of United States v. Innamarati, 996 F.2d 456 (1993) and others and withdraws his assertion that those drugs

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which would have been for personal use was [sic] not part of the conspiracy. As prior cases tend to show, because cocaine base is a scheduled I drug, excluding personal use portion of the drug quantity for guidelines sentence calculation does not seem to apply.

We agree that this constitutes waiver.

Finally, Ocean challenges the use of his statement to the New

Haven police to calculate drug quantity because of the "context in

which it was made." He argues that the New Haven officer's

admonition not to "minimize" constitutes encouragement to

overestimate. In addition, he argues that the broader record

contradicts his own estimation, citing to Christie's estimate of

the amount he received in a six-month period and his customers'

estimates of how much they bought from him. "When faced with

conflicting facts relating to drug quantity, a district court is

at liberty to make judgments about credibility and reliability."

Demers, 842 F.3d at 13. The court was at liberty to rely on

Ocean's own estimate as the most accurate assessment of drug

quantity. On this basis, we find no error.

II. Jermaine Mitchell

Ocean's co-Defendant Jermaine Mitchell raises two related

arguments in his appeal. First, he contends the trial judge erred

by allowing two law enforcement lay witnesses to testify that they

believed a substance they seized was crack cocaine. Mitchell says

that because the officers mentioned that laboratory reports were

created but the reports were not entered into evidence and the

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underlying chemists who wrote the report were not called as

witnesses, the law enforcement lay witnesses "were bronzed with an

impermissible expert-witness gloss." Second, Mitchell argues that

this same testimony about the reports came in without an

opportunity for him to examine the chemists who prepared the

reports and thus amounted to a Sixth Amendment violation of his

right to confront the witnesses against him. In order to address

these arguments, it is necessary to provide some context.4

A. Background

1. Trooper Gacek

At the time of his testimony, Brian Gacek had been a New

Hampshire State Police trooper for over ten years. He testified

that on December 28, 2011, he stopped a car driven by Adam Brooks

for a traffic violation. Mitchell was in the passenger seat and

Fern Dowling was in the back seat. Trooper Gacek impounded the

vehicle and obtained a search warrant for the car. Anticipating

that Trooper Gacek was about to testify that he found crack cocaine

in the car, Defendant Mitchell's attorney asked to approach sidebar

and said,

the Government's never given us any sort of lab report . . . that did an analysis and found that it was crack cocaine.5 And I am not sure that this witness is

4 Mitchell also filed a pro se brief, raising four arguments not presented in his counseled brief. We have considered them, and find each to be without merit. 5 Mitchell does not argue on appeal that his non-receipt of the lab reports constitutes a discovery violation.

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qualified to testify that the chemical compound is crack cocaine, so I object on that basis.6

The prosecutor responded that Trooper Gacek would be testifying

based on his experience and training that the substance appeared

to be crack cocaine. The trial judge overruled the objection

citing the fact that there was already sufficient evidence that

the substance was crack cocaine.7 The court indicated that if the

prosecutor laid a proper foundation, Trooper Gacek could say what

he thought the substance was. Trooper Gacek, after testifying

that he found a bag that contained a yellowish off-white, rock-

like substance, said that, based on his training and experience,

he believed the substance was crack cocaine.8 Trooper Gacek also

testified that he found a "crack pipe" in the vehicle.

On cross-examination, Ocean's attorney asked the trooper

whether he had tested the crack pipe, and the trooper responded

that he believed it was sent to the New Hampshire Police Forensic

Lab along with the other evidence. On further questioning by

6 At this point, Defendant Ocean's attorney also spoke up and argued that a chemist at the Maine HETL lab had told him that "if it is merely a white powder or a crystallized form . . . that under no reasonable scientific level could that ever be determined that it's cocaine versus any other drug." 7 Fern Dowling had already testified that they were transporting crack cocaine when they were stopped by the police in New Hampshire. 8 When the prosecutor offered a photograph of the bag of the items seized from the car as Government Exhibit 36, both defense counsel again objected citing the "same objection at sidebar as to foundation and scientific."

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Ocean's attorney, Trooper Gacek explained that all evidence in

drug cases would be sent to the lab. He indicated that he could

not recall what the results were, but that he knew that a lab

report was generated in this case. Defendant Mitchell's attorney

never raised an objection to any of this testimony.

2. Detective Quintero

Scott Quintero, a Maine State Police Detective, testified

that on August 29, 2013, while on patrol at the Portland bus

terminal, he approached and spoke with Mitchell. Mitchell

volunteered that he had some marijuana and that he might have some

other stuff in his pocket. Detective Quintero gave Miranda

warnings and asked Mitchell if he could remove the marijuana from

Mitchell's pocket. Mitchell consented. Detective Quintero

reached into Mitchell's pocket and removed the marijuana and a

small rock wrapped in cellophane. Detective Quintero, who had

been with the Maine State Police for seven and a half years at the

time of trial, testified that he recognized the rock as crack

cocaine based on its unique appearance and how it was packaged.

At this point, at sidebar, Ocean's attorney stated:

I am not aware of any testing done on this crack cocaine. And I am not aware that the HETL lab has been listed as a witness in this case. And therefore, I am going to object under Rule . . . 701 with regard to whether or not this can be characterized and introduced as crack cocaine.

The prosecutor indicated that, like Trooper Gacek, Detective

Quintero was able to recognize the substance based on his training

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and years of experience as a drug agent. Ocean's counsel explained

that because the substance had not been tested, it was prejudicial

to allow the detective to testify as to what he believed it was.

Defense counsel for Mitchell offered no objection or comment. The

trial judge overruled the objection on the ground that defense

counsel was free on cross-examination to inquire into any

infirmities in the Detective's knowledge and experience, and he

could also inquire as to whether any laboratory testing had been

done on the substance.

After questioning resumed, Detective Quintero testified that

Mitchell himself admitted that the substance was crack. Detective

Quintero then told Mitchell that he was going to arrest him, and

Mitchell volunteered that he had additional drugs by his ankle.

Detective Quintero retrieved a much larger bag of a substance from

the area of Mitchell's ankle. Detective Quintero testified that

he recognized the substance in the larger bag as crack cocaine

based on his training and experience, and that Mitchell again had

confirmed that it was.

On cross-examination, Ocean's counsel asked Detective

Quintero whether he sent the substance to a lab for testing.

Detective Quintero confirmed that he did send the substance for

testing, and he believed that results were received. Mitchell's

counsel offered no objection. When Ocean's counsel began to ask

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about a particular chemist at the state lab, the prosecutor

objected on relevance grounds.

At sidebar, the prosecutor pointed out that Mitchell had

already pleaded guilty to possessing this crack cocaine in state

court. The trial judge then expressed concern about wasting the

jury's time if in fact Mitchell had not only admitted that the

substance was crack cocaine but had pleaded guilty to its

possession. Mitchell's counsel commented that people plead guilty

without necessarily having the scientific analysis of a substance.

Ocean's counsel reiterated his position that without scientific

testing it is impossible to tell whether a substance is crack

cocaine. The prosecutor indicated that he did not plan to bring

in the chemist who had conducted the test and pointed out that the

Government did not have to prove that the substance was in fact

crack cocaine because the defendants were charged with conspiracy

rather than the substantive count of possession with the intent to

distribute. The trial judge directed defense counsel to move

along.

B. Evidentiary Objection

Mitchell contends that Trooper Gacek and Detective Quintero's

opinions that the substance they each seized was crack cocaine

were inadmissible because the officers referred to laboratory

reports, but no corresponding reports were submitted into evidence

and no expert chemist was called as a witness to verify the

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reports' contents. While he does not cite the rule, this argument

seems to be piggy-backing off the argument made at trial by Ocean's

counsel that the testimony violated Rule 701. Rule 701 addresses

opinion testimony by lay witnesses and requires that an opinion by

a lay witness be "(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to

determining a fact in issue; and (c) not based on scientific,

technical, or other specialized knowledge within the scope of [the

rule on testimony by expert witnesses]." Fed. R. Evid. 701.

Except for an initial objection that Trooper Gacek lacked the

qualifications to testify that the compound seized was crack

cocaine with no follow-up objection after the prosecutor laid a

foundation, Mitchell's counsel raised no objections either to the

law enforcement officers' identification of the substance as crack

cocaine or to Ocean's counsel's questions about the existence of

lab reports. Belanger, 890 F.3d at 27 (individual defendants are

required to raise their own objections). And Mitchell's counsel

never raised at trial the argument that the report bolstered the

officers' testimony that he now presents on appeal. United States

v. Mercado, 412 F.3d 243 , 247 (1st Cir. 2005) (objection on one

ground does not preserve appellate review of a different ground).

Accordingly, review is for plain error. Plain error exists where

"(1) an error occurred (2) which was clear or obvious and which

not only (3) affected [the defendant's] substantial rights, but

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also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." Mangual-Santiago, 562 F.3d

at 427 (alternation in original). Plain error "is a difficult

hurdle to vault," and Mitchell has not cleared it here. See United

States v. Madsen, 809 F.3d 712 , 717 (1st Cir. 2016).

Mitchell argues that because the officers testified that they

had seen lab reports, the implication was that the lab reports

confirmed the presence of cocaine base. This inference "bronzed"

the testimony of the lay law enforcement witnesses with an

impermissible expert-witness gloss, according to Mitchell.

There are two problems with this argument. First, as the

Government points out, it was Ocean's counsel, not the Government,

who brought up the lab reports. The lack of an objection by

Mitchell's counsel may well have been because he did not believe

that questions about missing lab reports were prejudicial to his

client. The prosecution's decision not to enter the reports and

the officers' inability to remember the results provided fertile

ground for closing arguments. Defense counsel were free to claim

that the Government would have introduced the lab reports if the

labs had confirmed that the substances were cocaine base. To allow

a defendant to raise a point on appeal that he may have

strategically decided not to raise at trial would invite

sandbagging by the defense. United States v. Taylor, 54 F.3d 967 ,

972 (1st Cir. 1995)(the raise-or-waive rule "precludes a party

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from making a tactical decision to refrain from objecting, and

subsequently, should the case turn sour, assigning error (or, even

worse, planting an error and nurturing the seed as insurance

against an infelicitous result)").

Second, as Mitchell concedes, the identification of a

substance as a drug may be based upon the opinion of a

knowledgeable lay person. United States v. Walters, 904 F.2d 765 ,

770 (1st Cir. 1990)("Proof based on scientific analysis or expert

testimony is not required to prove the illicit nature of a

substance, and identification of a substance as a drug may be based

on the opinion of a knowledgeable lay person."); United States v.

Paiva, 892 F.2d 148 , 155-57 (1st Cir. 1989)(finding a drug user

competent to give a lay witness opinion that a particular substance

perceived by her was a particular drug, based on her own experience

or knowledge). Mitchell is not contending on appeal that allowing

the officers to testify based on their experience and training

that they believed the substance was crack cocaine was error, but

rather that the references to lab reports -- invited, we note, by

the defense -- inappropriately bolstered the testimony. There was

ample evidence that the substance seized by each law enforcement

witness was crack cocaine. A witness testified that they were

carrying crack cocaine when they were stopped by Trooper Gacek in

New Hampshire. And Detective Quintero testified that Mitchell

himself admitted that the substance seized from him was crack

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cocaine. In light of the significant evidence already in the

record, the incremental effect of the references to laboratory

reports (without even stating the results contained in the reports)

did not affect Mitchell's substantial rights or seriously impair

the fairness of the proceeding. Mitchell fails to demonstrate

error, let alone plain error.

C. Confrontation Clause

In addition to his evidentiary objection, Defendant Mitchell

makes a one-paragraph argument that Mitchell's rights under the

Confrontation Clause of the Sixth Amendment were violated when

Trooper Gacek and Detective Quintero testified that they had seen

lab reports.

It is now well established that the government cannot

introduce a report created to serve as evidence for a criminal

proceeding without making the author of the report available for

cross examination. Melendez-Diaz v. Massachusetts, 557 U.S. 305 ,

310, 329 (2009) (finding a forensic lab report testimonial and so

requiring testimony from a witness competent to testify to the

truth of the report's statement to admit the report); see also

Bullcoming v. New Mexico, 564 U.S. 647 , 652 (2011) (under the

Confrontation Clause, a lab report stating defendant's blood

alcohol concentration could be admitted only with testimony from

analyst who performed, observed, or certified report, unless that

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person was unavailable and the defendant had the opportunity to

cross-examine her before the trial).

But here the Government did nothing of the sort. The

Government relied on the lay testimony of the officers,

knowledgeable drug users, and an admission of the Defendant to

identify the substance at issue. The Government never sought to

admit the lab reports and never sought to question the witnesses

about the existence of any such reports. Only Ocean's counsel

questioned the officers about lab reports, and Mitchell's counsel

offered no objection to this line of questioning. As above, review

of objections not raised by the appellant at trial is for plain

error.9 Here we find none.

III.

For the above stated reasons, we affirm Ocean's conviction

and sentence and affirm Mitchell's conviction.

9 Mitchell argues that although the Sixth Amendment was not mentioned at trial, a Confrontation Clause objection was embedded in a comment made by Ocean's counsel that the lab was not listed as a witness in the case. Even assuming this comment can be interpreted as an objection under the Sixth Amendment, no objection was made by Mitchell's counsel. Belanger, 890 F.3d at 27 ("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'" (citation omitted)).

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