SELYA, Circuit Judge.
Following his conviction for a drug-trafficking offense, defendant-appellant Jean Tony Valbrun assigns error to certain of the district court's evidentiary rulings and to a jury instruction. Finding his asseverational array unpersuasive, we affirm his conviction.
This case is one of several arising out of the activities of a sprawling drug-distribution ring operating in Maine. As such, it implicates one of many spokes radiating from the hub of a conspiratorial wheel. We briefly rehearse the relevant facts and travel of the case, directing readers who hunger for more exegetic details about the drug-distribution ring to consult our opinion in
In 2014, Joey Brown, an agent of the Drug Enforcement Administration (DEA), led an investigation into the activities of Jacques Victor, the suspected kingpin of a drug-distribution ring. During this investigation, the DEA received judicial authorization to intercept calls and text messages to and from a number of telephones, including Victor's cellphone.
When the plot matured, the authorities were ready: the appellant was arrested while driving a rental vehicle en route from Massachusetts to Maine. Concealed within the vehicle were 225 net grams of heroin and 106.2 net grams of cocaine base (crack cocaine).
In due course, the appellant and eleven other persons were indicted on charges associated with the activities of the drug ring. The appellant was, however, tried separately, on charges of knowingly possessing with intent to distribute heroin and crack cocaine,
At the conclusion of the trial, the district court instructed the jury on, inter alia, the doctrine of willful blindness. The jury found the appellant guilty as charged. The court subsequently sentenced him to an
The appellant assigns error in two respects. First, he contends that the district court erred in allowing parts of Victor's testimony about the intercepted calls. Second, he contends that the court erred in instructing the jury on willful blindness. We address these contentions sequentially.
As an initial matter, the appellant trains his fire on the district court's admission of Victor's testimony interpreting parts of the telephone conversations. In support, he argues that most of the language was clear and that Victor's interpretive gloss was neither necessary nor helpful to an understanding of the evidence. The challenged testimony falls into two categories: in the appellant's words, one category consisted of testimony comprising "repetitions or explanations ... juxtaposed with testimony as to ... Victor's own knowledge of facts"; the second category consisted of testimony that "materially changed the meaning of statements." Although the appellant attempts to paint with a broad brush, he only articulates specific challenges to testimony regarding three calls. We limit our inquiry accordingly.
A threshold problem looms: the appellant's challenges implicate Federal Rule of Evidence 701, and the government disputes whether the appellant adequately preserved these objections below. We find it unnecessary to resolve this dispute; rather, we assume, favorably to the appellant, that his objections were preserved. Consequently, our review is for abuse of discretion.
The appellant's interpretive testimony is fairly characterized as lay opinion testimony.
Here, Victor's interpretations are rationally based on his experience and his first-hand perceptions and do not involve "scientific, technical, or other specialized knowledge." Fed. R. Evid. 701. The question, then, is whether the district court abused its discretion in determining that those interpretations would help the jury to understand what was being communicated in the calls. In answering this question, we do not write on a pristine page: it is settled beyond hope of contradiction that a witness with personal knowledge of slang or jargon commonly employed in the drug trade may, consistent with Rule 701, be allowed to interpret ambiguous language used conversationally by drug traffickers.
In this instance, though, the appellant insists that the language in most of the intercepted calls was clear and that Victor's testimony was of no help in understanding the dialogue. The district court reached a different conclusion, and our review of the record convinces us that the court's conclusion was well within the compass of its discretion. The calls contained a host of ambiguities, and Victor's testimony served not only to clarify those ambiguities but also to provide needed context to the events that were transpiring. For example, the participants in the calls referred to individuals involved in the drug ring's activities informally, and Victor was helpful to the jury in identifying the persons to whom sobriquets such as "Dude" and "Face" referred.
We add, moreover, that the participants in the calls used ambiguous terms to discuss what the government argues were references to the drugs found in the car and money the appellant would receive for transporting the drugs. For example, calls between Victor and the appellant contained vague references to "putting the thing," "my stuff," and "hid[ing] it well." Nor does it seem to have been mere happenstance: Victor testified that he often tried to "conceal [his] transaction[s]" by not explicitly mentioning drugs. Seen in this light, it is nose-on-the-face plain that Victor's testimony was likely to assist the jury in understanding what was meant both by the statements he made and by the statements he overheard. Given Victor's personal knowledge of the vernacular favored by the conspirators,
The appellant also asserts that exclusion of portions of the challenged testimony was mandated because Victor misled the jury by materially changing the meaning of recorded statements. Properly viewed, this assertion goes to the weight of Victor's testimony, not to its admissibility.
To be sure, evidence may be excluded "if its probative value is substantially outweighed"
When Rule 403 is in play, the devoir of persuasion rests with the party urging exclusion.
To say more about the challenged testimony would be pointless. We hold, without serious question, that the district court did not abuse its "considerable discretion,"
This brings us to the appellant's claim that the district court's willful blindness instruction was unwarranted. Our case law is inconsistent concerning the standard of review that applies where, as here, a defendant challenges the sufficiency of the evidence undergirding a willful blindness instruction. While older cases have reviewed for abuse of discretion,
We need not unwind this procedural tangle. Given the impeccable provenance of the challenged instruction, we simply assume, favorably to the appellant, both that the claim of error was duly preserved and that it engenders de novo review. Even on such a generous set of assumptions, the claim is hopeless.
The doctrine of willful blindness permits the government to prove scienter when a defendant deliberately shields himself from apparent evidence of criminality.
To begin, the government is not required to prove willful blindness by direct evidence.
In this case, warning signs abounded. For instance, the appellant was a party to a call during which (as Victor testified) Victor and Duffaud discussed the rental vehicle's air filter housing system as a potential place to hide drugs. During the same call, Victor told the appellant, "[s]ince you're a mechanic call me when dude is putting the thing," and the appellant replied, "Aight."
So, too, in a subsequent call, the appellant told Victor, "Dude is down the street, coming. Get it ... get on the highway; ... ninety five." Victor responded: "Aight ... If you can, look for a good place in the car to hide it well for me. Look under, if you can search under ... If you can, go under physical yourself," to which the appellant replied, "[y]eah, imma put ..." From these and other discussions explicated by Victor, the jury reasonably could have inferred that the appellant either knew of an effort to hide drugs in the rental vehicle and was cooperating in that endeavor or he purposefully avoided looking into the meaning of what the statements portended. The latter inference was sufficient to ground a willful blindness instruction.
In an attempt to derail this reasoning, the appellant invokes our decision in
The case before us is readily distinguishable from
By contrast, the present record contains ample evidence, including Victor's testimony regarding the contents of the intercepted calls, from which a jury reasonably could find — as this jury did — that the appellant knew that a drug deal was in the offing. Moreover, the jury reasonably could have found that the appellant either knowingly participated in the transportation of the drugs or deliberately closed his eyes to the obvious fact that he was transporting drugs.
We need go no further. For the reasons elucidated above, the judgment is