United States of America v. Andrew Symonevich

United States Court of Appeals
For the First Circuit
No. 11-1236
UNITED STATES OF AMERICA,
Appellee,
v.
ANDREW SYMONEVICH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, U.S. District Judge]
Before
Selya, Circuit Judge,
Souter, Associate Justice, *
Lipez, Circuit Judge.
Robert S. Sinsheimer, with whom Lauren Thomas and Sinsheimer
& Associates were on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
July 31, 2012
The Hon. David H. Souter, Associate Justice (Ret.) of the *
Supreme Court of the United States, sitting by designation.

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LIPEZ, Circuit Judge. In February 2009, Andrew
Symonevich was indicted on one count of conspiracy to distribute,
and to possess with the intent to distribute, cocaine and heroin in
violation of 21 U.S.C. §§ 841(a)(1), 846. He moved to suppress
evidence recovered during the search of a car in which he was a
passenger. The district court denied Symonevich's motion to
suppress. After a four-day trial, the jury convicted Symonevich of
the charged offense.
Symonevich now appeals the district court's denial of his
motion to suppress and challenges the sufficiency of the evidence
for his conviction. Alternatively, he demands a new trial because
of the improper admission of certain testimony and charts and the
inadequacy of the conspiracy instruction given to the jury.
We affirm.
I.
We recount the facts of the case in the light most
favorable to the verdict. United States v. Mubayyid, 658 F.3d 35,
41 (1st Cir. 2011).
A. The Wiretap Investigation
As part of its ongoing investigation of drug trafficking
by a group known as the Duran Gomez organization, the Drug
Enforcement Agency ("DEA") obtained permission to wiretap six
telephone numbers associated with the organization, referred to as
target telephones, or "TT" numbers one through six. Calls from
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Symonevich were intercepted on three days in November 2008 on TT-2,
a so-called "customer line."
On November 2, through a series of seven intercepted
phone calls, Symonevich arranged to buy 30 grams of heroin at a
McDonald's off Interstate 495 in Massachusetts. Four days later,
on November 6, Symonevich arranged through a series of phone calls
to buy 50 grams of heroin and one ounce of cocaine. During one of
the intercepted calls, an individual known as "Tony" asked
Symonevich what kind of car he was driving. Symonevich then asked
an unidentified male, "What's this? What kind of car is this?"
The unidentified male answered that they were in a green Subaru.
"Tony" was later identified as Wilson Ariel-Soto, the alleged
leader of the drug trafficking organization.
On November 12, agents intercepted a number of calls
between Symonevich and Ariel-Soto, during which Symonevich arranged
to purchase 30 grams of heroin. After Symonevich's first recorded
call at 1:21 p.m., DEA agents sent unmarked surveillance units
toward Interstate 495 to follow Symonevich. Massachusetts State
Police Sergeant James Bazzinotti, who was assisting the DEA with
surveillance during the investigation, observed a green Subaru and
followed it. After surveillance units observed what DEA agents
believed to be a meeting between Symonevich and Ariel-Soto's drug
courier, agents planned to stop Symonevich. In the meantime,
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however, Bazzinotti stopped at a traffic light and lost sight of
the Subaru, which he only saw again after it had been stopped.
B. The Vehicle Stop
Symonevich was arrested on November 12 after a traffic
stop that commenced at approximately 4:18 p.m. and was apparently
unrelated to the DEA investigation and Bazzinotti's surveillance.
The arresting officer, Massachusetts State Trooper Sweeney, was
patrolling and observed a broken side tail light on the green
Subaru in which Symonevich was traveling. Sweeney pulled his
police cruiser up behind the Subaru and initiated a stop by
activating his blue lights. As he turned on his lights, Sweeney
observed the passenger, Symonevich, "lean down as if placing or
retrieving something from underneath his seat." Sweeney testified
that this movement caused him concern for his safety. The Subaru
slowly pulled into the breakdown lane and stopped. Sweeney
approached the vehicle on the passenger's side where he observed
Symonevich in the passenger seat looking "completely ashen faced"
and "scared to death."
Sweeney asked Symonevich and the driver, later identified
as Gerard Adair, where they were going. Adair first said that he
had been visiting his grandmother. In response to further
questioning, he stated that he had met a girl online and was going
to meet up with her but could not find her. Sweeney asked
Symonevich if he was related to Adair. Symonevich responded that
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he was just going for a ride with his friend. When Sweeney asked
Adair for his license and registration, he observed that Adair's
hand was shaking as he handed Sweeney his driver's license.
Sweeney returned to his cruiser to run a record check and radioed
for backup. Trooper Brian Sweet arrived shortly thereafter.
After informing Sweet of his observations, Sweeney went
back to the Subaru and asked Symonevich to exit the vehicle.
Symonevich complied. As Symonevich exited, Sweeney and Sweet
smelled the stale odor of marijuana coming from Symonevich's
clothing. Sweeney took Symonevich to the rear of the Subaru and
asked him why he had reached under the seat as Sweeney pulled them
over. After he first said that he was putting a piece of paper
down, Symonevich revised his statement, saying that he had actually
put a can of fix-a-flat under the seat. Sweeney asked Symonevich
why he had the can. Symonevich responded that he had it "in case
we get a flat." Sweeney told Symonevich that his answer gave him
concern for his safety. Although Symonevich was not under arrest,
Sweeney wanted him to sit in the back of the police cruiser while
Sweeney spoke to Adair. Symonevich complied.
Sweeney approached Adair and asked what Symonevich had
put under the seat. Adair said that he did not know. Sweeney
asked if there were weapons in the car. Adair replied, "Not that
I know of." Sweeney asked permission to search the car and Adair
declined. Sweeney nevertheless searched the car because he wanted
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to be sure there was nothing under the seat that posed a safety
threat. About three-quarters of the way through the stop, Sweeney
got a radio call informing him that Symonevich was also the subject
of an ongoing DEA investigation.
Sweeney looked under the passenger seat and found a can
of tire puncture sealant. He picked it up and observed that the
weight was not consistent with a can of tire sealant. Sweeney
shook the can and felt something solid move around inside. He
looked at the bottom of the can, saw that it was slightly separated
from the can, unscrewed the bottom, and found a wad of paper towels
and three bundles of brown substances that he believed to be
packages of heroin. Sweeney placed Symonevich and Adair under 1
arrest.2
II.
Symonevich makes four arguments on appeal: (1) the
district court erred in denying his motion to suppress on the basis
that, as a passenger in the vehicle, he lacked standing to
challenge the seized evidence; (2) the district court abused its
discretion in admitting certain testimony and charts; (3) there was
Later chemical analysis of the recovered substance showed 1
30.44 grams of heroin.
On December 12, 2008, one month after his arrest, while out 2
on bail, Symonevich made two calls on TT-6 to Ariel-Soto that were
intercepted. In the first, he again identified himself as "Dale's
man from Maine" and asked if he could "swing by and see you today."
No further details were overheard.
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insufficient evidence to show that he joined the charged Duran
Gomez conspiracy to distribute drugs; and (4) the district court
failed to properly instruct the jury that intent to resell drugs is
not necessarily sufficient to prove membership in a conspiracy to
distribute drugs. We address each argument in turn.
A. Motion to Suppress
Where the denial of a motion to suppress has been
challenged, we review the district court's findings of fact for
clear error, United States v. Werra, 638 F.3d 326, 330 (1st Cir.
2011), and "we review de novo the district court's conclusions of
law, including its application of the law to the facts, its
probable cause and reasonable suspicion determinations, and the
district court's ultimate legal decision to grant or deny the
motion to suppress," United States v. Camacho, 661 F.3d 718, 724
(1st Cir. 2011).
After hearing argument on the standing issue, the
district court orally denied Symonevich's motion to suppress,
relying on Rakas v. Illinois, 439 U.S. 128 (1978):
[I]f the drugs weren't taken on [Symonevich's]
person but taken from the car, simply as a
passenger, without more, without some kind of
showing beyond the fact of being a passenger
in a car and it having been found underneath
his seat, that's not enough . . . so the
motion will be denied for lack of standing.
Symonevich argues that as a passenger in the Subaru, he
had a reasonable expectation of privacy in items seized therefrom
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and, thus, had standing to challenge the lawfulness of a search.3
He argues that
the law simply cannot be so fine as to allow
an individual to challenge a pat frisk of his
person, but not allow him to challenge the
seizure of property he had placed just beneath
his seat seconds before the encounter. . . .
[W]hen Mr. Symonevich was placing the can
beneath his seat, he expected it would remain
as private as if he placed it in his pocket.
In addition, Symonevich argues that the district court failed to
adequately consider the duration of the trip between Maine and
Massachusetts in determining whether he had a legitimate
expectation of privacy in the vehicle. He also claims that he had
a possessory interest in the can of tire sealant that afforded him
a reasonable expectation of privacy in the space under the seat and
thus standing to suppress the recovered evidence.
The government makes three arguments in response: (1)
that a passenger does not have standing to challenge the search of
a lawfully stopped vehicle in which he or she has no proprietary
interest; (2) in the alternative, that there was probable cause to
believe contraband would be found in the Subaru, and hence the
Because the parties both use the term "standing" in their 3
briefing, we do so here. We note, however, that the Supreme Court
has stated that the threshold analysis is "more properly placed
within the purview of substantive Fourth Amendment law than within
that of standing," United States v. Lipscomb, 539 F.3d 32, 36 (1st
Cir. 2008) (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998))
(internal quotation marks omitted). As a threshold matter in
arguing for suppression, the defendant must establish that he or
she had a reasonable expectation of privacy in the area searched or
the items seized. Id. at 35-36.
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search was lawful under the so-called "automobile exception" to the
Fourth Amendment's warrant requirement; and (3) in the further
alternative, that the recovered evidence would have inevitably been
discovered by DEA agents if they had stopped the Subaru before
Trooper Sweeney, as they were about to do, and hence it should be
admitted pursuant to the inevitable discovery doctrine, see United
States v. Pardue, 385 F.3d 101, 107-08 (1st Cir. 2004). We focus
on the government's first argument.
The Fourth Amendment's protection against unreasonable
searches may only be claimed where a defendant demonstrates that
he or she personally has a reasonable expectation of privacy in the
place searched. See Rakas, 439 U.S. at 143-44 n.12. As a general
proposition, "[a] person who is aggrieved by an illegal search and
seizure only through the introduction of damaging evidence secured
by a search of a third person's premises or property has not had
any of his [or her] Fourth Amendment rights infringed." Id. at
134. In the context of a vehicle search, a passenger who has
"asserted neither a property nor a possessory interest in the
automobile, nor an interest in the property seized," has made no
showing that he or she has a legitimate expectation of privacy in,
for example, the area under the seat of the car in which he or she
was "merely [a] passenger[]." Id. at 148. Under such
circumstances, a vehicle search does not infringe upon the
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passenger's Fourth Amendment rights. Thus, the passenger lacks
standing to challenge the search.
Symonevich argues that the Supreme Court has recently
recognized the Fourth Amendment rights of passengers in the context
of vehicle stops. See Arizona v. Johnson, 555 U.S. 323, 332 (2009)
(explaining that a passenger "is seized, just as the driver is,
from the moment [a car stopped by the police comes] to a halt on
the side of the road") (alteration in original) (quoting Brendlin
v. California, 551 U.S. 249, 263 (2007)) (internal quotation marks
omitted). These cases, however, do not extend Fourth Amendment
rights to passengers who challenge only the search of the vehicle
in which they were traveling and not their seizure. Indeed, the
Brendlin Court noted that the appellant "did not assert that his
Fourth Amendment rights were violated by the search of [the
driver's] vehicle, but claimed only that the traffic stop was an
unlawful seizure of his person." 551 U.S. at 253 (citation
omitted). Moreover, the Court approvingly cited Rakas for its
rejection of the "target theory" of standing, embraced by
Symonevich here, which would effectively allow "any criminal
defendant at whom a search was directed" to challenge the legality
of the search. Id. at 260 (quoting Rakas, 439 U.S. at 132)
(internal quotation marks omitted).
Symonevich argues that even if Brendlin and Johnson did
not explicitly overrule Rakas, they did so implicitly because
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concluding otherwise would defeat the deterrent purposes of the
exclusionary rule. We disagree. "[T]he exclusionary rule is an 4
attempt to effectuate the guarantees of the Fourth Amendment, [and]
it is [thus] proper to permit only defendants whose Fourth
Amendment rights have been violated to benefit from the rule's
protections." Rakas, 439 U.S. at 134. Indeed, "[d]espite the
deterrent aim of the exclusionary rule, [the Supreme Court has]
never held that unlawfully seized evidence is inadmissible in all
proceedings or against all persons. 'The application of the rule
has been restricted to those areas where its remedial objectives
are thought most efficaciously served.'" Id. at 134 n.3
(alteration omitted) (citations omitted) (quoting United States v.
Calandra, 414 U.S. 338, 348 (1974)). The Supreme Court has
regularly declined to extend the benefits of the exclusionary rule
to defendants whose personal Fourth Amendment rights have not been
infringed upon, and we decline to do so here. See, e.g., Carter,
525 U.S. at 88.
As a general proposition, an argument that the Supreme Court 4
has implicitly overruled one of its earlier decisions is suspect.
See Agostini v. Felton, 521 U.S. 203, 237 (1997) ("We do not
acknowledge, and we do not hold, that other courts should conclude
our more recent cases have, by implication, overruled an earlier
precedent. . . . '[I]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.'" (quoting Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989))).
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Symonevich argues in the alternative that the particular
circumstances in this case gave him a reasonable expectation of
privacy in the vehicle. Relying on our decision in United States
v. Lochan, 674 F.2d 960, 963-65 (1st Cir. 1982), Symonevich argues
that the duration of the trip between Maine and Massachusetts – a
nearly six hour round-trip drive – was long enough that he had a
reasonable expectation of privacy in the vehicle. We did say in
Lochan that the fact of a long trip "would engender a slightly
greater privacy expectation than would a short trip." Id. at 965.
Symonevich says that vehicle passengers on long rides are akin to
overnight guests and thus have a reasonable expectation of privacy
in the vehicle. As he puts it, "[s]ociety would consider it
reasonable to bring personal items along on such a lengthy car ride
. . . and recognize that this long of a trip would give rise to
some expectation of privacy on the part of a passenger within the
vehicle."
We are skeptical about the continued relevance of the
type of duration argument that Symonevich makes. Since we decided 5
Lochan, the Supreme Court has developed extensive case law on the
We characterized the trip in Lochan as "long." Despite that 5
fact - and the fact that the defendant had been driving the vehicle
when it was stopped - we concluded that the defendant failed to
demonstrate that he had a reasonable expectation of privacy in the
vehicle. Other factors "far outweighed" the effect of the duration
of the trip, including the fact that the appellant did not own the
car. See Lochan, 674 F.2d at 965.
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automobile exception, circumscribing the amount of privacy one can
expect in a vehicle and further differentiating searches of
automobiles from searches of homes. Compare, e.g., New York v.
Class, 475 U.S. 106, 112-113 (1986) ("One has a lesser expectation
of privacy in a motor vehicle because its function is
transportation and it seldom serves as one's residence or as the
repository of personal effects. A car has little capacity for
escaping public scrutiny. It travels public thoroughfares where
both its occupants and its contents are in plain view." (quoting
Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion)
(internal quotation marks omitted)), and St. Hilaire v. City of
Laconia, 71 F.3d 20, 28 n.6 (1st Cir. 1995) ("Fourth Amendment law
. . . recognizes a distinction between a person's home and a
person's car. For example, the Fourth Amendment permits a slightly
broader search pursuant to the arrest of the occupant of a vehicle
and some warrantless searches of vehicles are permitted even if
there are not emergency circumstances."), with Carter, 525 U.S. at
99 (Kennedy, J., concurring) ("The Fourth Amendment protects '[t]he
right of the people to be secure in their . . . houses,' and it is
beyond dispute that the home is entitled to special protection as
the center of the private lives of our people." (alteration in
original) (quoting U.S. Const. amend. IV)). Thus, any analogy
between an automobile and a house is suspect. In any event,
without categorically rejecting the relevance of the duration of a
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trip in an automobile to the reasonable expectation of privacy
analysis, we conclude that the duration of the trip here, under all
of the circumstances, did nothing to enhance Symonevich's
expectation of privacy.
Symonevich also argues that he had a possessory interest
in the can of fix-a-flat, and that this possessory interest
established his reasonable expectation of privacy in the space
under the passenger seat. Although Symonevich acknowledges that he
never explicitly claimed a possessory interest in the can, he says
that the government imputed such possession to him when it charged
him with criminal conspiracy to distribute narcotics based on the
heroin found in the can. He now argues that he was entitled to the
same presumption for purposes of his constitutional challenge to
the search. The government contends that Symonevich insufficiently
asserted his possessory interest in the can, arguing that he did
not submit an affidavit claiming that interest with his motion to
suppress.6
We need not resolve that dispute because even if
Symonevich had demonstrated a possessory interest in the can, that
The burden to establish a reasonable expectation of privacy 6
lies squarely on the movant. See, e.g., Lipscomb, 539 F.3d at 35-
36. Symonevich suggests that he was unable to make his standing
argument for fear of self-incrimination. That argument is
meritless, as we have long held that "testimony given to meet
standing requirements cannot be used as direct evidence against the
defendant at trial on the question of guilt or innocence." Id. at
36 n.1 (quoting United States v. García-Rosa, 876 F.2d 209, 219
(1st Cir. 1989)) (internal quotation marks omitted).
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interest would not establish a reasonable expectation of privacy in
the space beneath the passenger seat. Whether or not Symonevich
had a possessory interest in the can, he placed the can under the
seat, an area in which he had no reasonable expectation of privacy.
See Rawlings v. Kentucky, 448 U.S. 98, 105-106 (1980) (citing
Rakas, 439 U.S. at 149-50 n.17). As the Rawlings Court noted,
"[h]ad [the] petitioner placed his drugs in plain view, he would
still have owned them, but he could not claim any legitimate
expectation of privacy." Id. at 106. Here, too, the petitioner
may have owned the can of tire sealant that contained the drugs.
As a passenger in the vehicle, however, he lacked a reasonable
expectation of privacy in the space beneath the car seat for the
reasons already discussed. Symonevich's alleged possessory
interest does not strengthen his expectation of privacy argument.
In summary, we agree with the district court that, as a
passenger in the Subaru, Symonevich did not have a reasonable
expectation of privacy in the space below the passenger seat from
which the heroin was recovered. We affirm the district court's
denial of his motion to suppress on that basis.
B. Evidentiary Challenges
Symonevich argues that the district court erred by
admitting two types of evidence at trial: Special Agent Murray
Archambault's opinion testimony that Symonevich was a distributor,
and summary charts of intercepted phone calls and information
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conveyed therein. We review a district court's evidentiary 7
determinations, including its decision to admit certain testimony,
for abuse of discretion. United States v. Rodríguez-Vélez, 597
F.3d 32, 40 (1st Cir. 2010).
1. Special Agent Archambault's "Distributor" Testimony
During a pre-trial colloquy, the government stated that
it "was content to proceed without expert testimony per se," and
the court noted that the government had noticed no experts.
Nevertheless, Symonevich argues that the government presented, and
the district court admitted, expert testimony from Archambault, who
stated a number of times that in his opinion, based on the quantity
of drugs Symonevich purchased, Symonevich was a drug distributor,
not a mere consumer. Symonevich alleges that the admission of that
expert testimony was an abuse of discretion. See United States v.
Valdivia, 680 F.3d 33, 58-61 (1st Cir. 2012) (Lipez, J.,
concurring).
We bypass that issue. Even assuming that it was an abuse
of discretion, the error was harmless given the abundance of
additional evidence, discussed below, that supported the jury's
Ordinarily we would discuss a challenge to the sufficiency 7
of the evidence, which might result in a judgment of acquittal,
before alleged trial errors, which might result only in the lesser
relief of a new trial. But, given the trial errors cited by the
appellant, we must first examine them to determine the scope of the
record for the purpose of the sufficiency analysis.
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conclusion that Symonevich participated in the charged conspiracy
to distribute drugs.8
2. Charts Summarizing Data from Intercepted Calls
Government witness Kristina O'Connell, an Internal
Revenue Service agent, testified about the data that she collected
from the more than 10,000 intercepted calls. The 71-page
spreadsheet containing the call data was admitted into evidence.
Of the 1,024 deals arranged during those calls by 127 different
individuals, O'Connell testified that Symonevich made the second
largest individual purchase of heroin. To summarize information
contained in the extensive data spreadsheets, the government
presented a chart showing the average amount of heroin purchased by
each of the 127 individuals ("Exhibit 27"), and a chart showing how
Symonevich's individual purchases compared to the average purchase
arranged during intercepted calls ("Exhibit 14").
In arguing that the district court abused its discretion
by admitting these charts, Symonevich claims that information about
the size of his purchases compared to other individuals' purchases
was "utterly immaterial to the issues in the case" and was used
only to buttress Archambault's testimony. He further argues that
the charts' probative value was substantially outweighed by the
danger of unfair prejudice: "Here the danger was one of unfair
subtle persuasion. . . . The charts create a subtle bias. The
See infra note 9. 8
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working assumption is that a large buyer must have been a
distributor." See Fed. R. Evid. 403.
Rule 403 states that a "court may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence." Evidence, however, is not unfairly
prejudicial merely because it is harmful to the defendant. Indeed,
if the evidence did not prejudice Symonevich in some way, it would
not be relevant to the case. For purposes of Rule 403, "unfair
prejudice" occurs where there is "an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an
emotional one." Fed. R. Evid. 403 advisory committee's note.
"Only rarely – and in extraordinarily compelling
circumstances – will we, from the vista of a cold appellate record,
reverse a district court's on-the-spot judgment concerning the
relative weighing of probative value and unfair effect."
Fitzgerald v. Expressway Sewerage Constr., Inc., 177 F.3d 71, 75
(1st Cir. 1999) (quoting Freeman v. Package Mach. Co., 865 F.2d
1331, 1340 (1st Cir. 1998)) (internal quotation marks omitted).
The circumstances here are not compelling. The relevance and
probative value of evidence demonstrating the size of Symonevich's
purchases relative to Ariel-Soto's other customers' purchases are
apparent. The evidence may have appropriately informed the jurors'
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understanding of the nature of the relationship between Symonevich
and Ariel-Soto and whether the drugs were intended for personal
consumption or redistribution, both critical components of the
government's conspiracy case. The district court did not abuse its
discretion in determining that the probative value of this
testimony was not substantially outweighed by a danger of unfair
prejudice.
C. Sufficiency of the Evidence
Having determined the scope of the record for the purpose
of the sufficiency analysis, we now consider whether there was
sufficient evidence to prove that Symonevich joined the charged
conspiracy to distribute and to possess with intent to distribute
narcotics. We review a challenge to the sufficiency of the
evidence de novo, considering both direct and circumstantial
evidence in the light most favorable to the verdict. Rodríguez-
Vélez, 597 F.3d at 38. A reversal is warranted only where no
rational factfinder could have concluded that the evidence
presented at trial, together with all reasonable inferences,
established each element of the crime beyond a reasonable doubt.
Id. at 39.
To prove a conspiracy to distribute narcotics, the
government must show that a conspiracy existed, the defendant knew
of the conspiracy, and the defendant voluntarily participated in
it. Id. Symonevich purchased 110 grams of heroin in a ten-day
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period for approximately $12,000. His 50-gram purchase on November
6 was the second largest individual sale of heroin of the more than
one thousand deals recorded on the wiretap. The average size of
Symonevich's purchase across three purchases was 36.6 grams of
heroin. The average for all the deals recorded between August 2008
and January 2009 was 5.2 grams.
Each of the deals that Symonevich arranged with Ariel-
Soto followed a familiar pattern and was arranged quickly. Ariel-
Soto would direct Symonevich where to meet with a courier.
Symonevich then traveled from Maine to purchase drugs in
Massachusetts within hours of calling Ariel-Soto. Other evidence
showed that Symonevich made orders using the conspiracy's code,
understood the structure of the organization, and cooperated with
Ariel-Soto to avoid police detection.
The jury could have inferred from this evidence that
Ariel-Soto and Symonevich shared more than a buyer-seller
relationship involving personal use or redistribution of the drugs
by Symonevich independent of the Duran Gomez organization.
Further, from Symonevich's willingness to contact Ariel-Soto a
month after Symonevich's arrest, the jury could have concluded that
the two had a relationship based on trust and familiarity.
Moreover, from the fact that Symonevich always introduced himself
as "Dale's man from Maine," the jury could have inferred that
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Symonevich and Ariel-Soto were connected by a third party known to
Ariel-Soto as part of the redistribution network.
While we have stated that proof of redistribution may not
necessarily prove a conspiracy, it may be sufficient in some
circumstances:
The use of conspiracy doctrine in a vertical
context has caused courts unease. In this
circuit the continuing purchase and sale
relationship between [the dealers and the
defendant], and the dealers' knowledge of [the
defendant's] re-distribution, would permit a
jury to infer both an agreement between them
that [the defendant] possess the drugs and the
requisite intent as to distribution.
United States v. Boidi, 568 F.3d 24, 29-30 (1st Cir. 2009). The
foregoing evidence, together with all reasonable inferences, was
sufficient for a rational jury to conclude that each element of the
conspiracy to distribute (its existence, Symonevich's knowledge of
it, and his voluntary participation in it) had been proven beyond
a reasonable doubt.9
We declined earlier to decide whether Archambault's 9
testimony that Symonevich was a distributor was impermissible
expert testimony, stating that even if its admission was erroneous,
that error was harmless. Consistent with that determination, we
have evaluated the sufficiency of the evidence here without
considering the challenged portions of Archambault's testimony.
Although Archambault referred to Symonevich as a distributor a
number of times and explained that that characterization was based
on the amount of drugs that Symonevich purchased, these references
occurred as part of a larger colloquy about the structure of the
drug trafficking organization, the use of couriers, and the average
amount of drugs purchased by customers on the tapped phone line.
Moreover, while the government argued in closing that Symonevich
was a distributor given the quantity of drugs that he purchased, it
made no direct references to Archambault's opinion testimony.
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D. Jury Instruction
We review preserved claims of instructional error "under
a two-tiered standard: we consider de novo whether 'an instruction
embodied an error of law,' but 'we review for abuse of discretion
"whether the instructions adequately explained the law or whether
they tended to confuse or mislead the jury on the controlling
issues."'" United States v. Jadlowe, 628 F.3d 1, 14 (1st Cir.
2010) (quoting United States v. Silva, 554 F.3d 13, 21 (1st Cir.
2009) (quoting United States v. Ranney, 298 F.3d 74, 79 (1st Cir.
2002))). The district court's refusal to give a particular
instruction constitutes error only if the requested instruction was
(1) correct as a matter of substantive law, (2) not substantially
incorporated into the charge as rendered, and (3) integral to an
important point in the case. United States v. Mercado, 412 F.3d
243, 251 (1st Cir. 2005). An error mandates reversal only when it
is prejudicial based on a review of the entire record. United
States v. Díaz, 670 F.3d 332, 341 (1st Cir. 2012).
Here, Symonevich argues that the district court erred
when it failed to give an instruction stating that "evidence that
a buyer intends to resell the product does not necessarily
Given the extensive evidence implicating Symonevich in the charged
conspiracy, including the multitude of data demonstrating that
Symonevich made larger individual purchases than most other
customers, we conclude that any error in admitting Archambault's
distributor testimony was harmless.
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establish that he has joined a distribution conspiracy." He 10
alleges that the instruction given "could have led jurors to infer
that they could convict of conspiracy if Mr. Symonevich had any
plans to distribute the drugs when he bought them, and that such
intent would satisfy the element of shared intent, regardless of
the intent of the seller, even if [the] defendant did not fully
join the conspiracy."
We disagree. In relevant part, the district court's
instructions stated:
In order to prove the crime of
conspiracy the government must prove two
things. First, that two or more persons
entered into an unlawful agreement as alleged
in the indictment, that is, there was a
conspiracy; and second, that the defendant in
question knowingly and willfully became a
participant in that conspiracy.
. . . . It's not enough to show that people
behave similarly or that they were associated
in some way with each other, that they knew
each other, or even that they engaged in
certain transactions with each other. Proof
that certain persons associated does not by
itself show they had agreed to act together to
commit an unlawful act or pursue an unlawful
purpose, although, of course, the association
Symonevich's jury instruction argument here is more refined 10
than the instruction he proposed below. He is correct, as he
argues on appeal, that evidence that a buyer intends to resell
drugs does not necessarily establish a conspiracy to distribute.
Although he states that the instruction he proposed in the district
court was "to this effect," in truth, his proposed instruction was
a misstatement of the law. It stated, in pertinent part, that
"evidence that a buyer intended to resell drugs instead of
personally consuming them does not establish a conspiracy."
(Emphasis added.)
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is a fact you can take into account, among
others, in deciding whether they had, in fact,
an agreement.
Now, in particular, the existence of a
simple buyer/seller relationship does not by
itself establish that a conspiracy existed
between the buyer and the seller. There must
be evidence, direct or circumstantial, that
the participants shared a joint purpose that
was the object of the alleged conspiracy. So,
for example, if in your judgment, the evidence
supports a conclusion that the buyer and the
seller shared the joint purpose of
distributing illegal drugs, then the existence
of a conspiracy between them to do so might be
inferred. But the evidence must show that the
members of an alleged conspiracy or
participants in an alleged conspiracy in some
way or manner came to an actual mutual
understanding or agreement that they would
jointly try to accomplish the conspiratorial
objective.
Symonevich's proposed instruction was substantially
incorporated into the instructions given. The district court told
the jury that in order to be convicted, Symonevich had to "bec[o]me
a participant in that conspiracy" (emphasis added), an unmistakable
reference to the conspiracy to distribute drugs alleged in the
indictment. Moreover, the district court explained that similar
behavior between individuals is not sufficient to demonstrate a
conspiracy. The court explained that just because Ariel-Soto and
Symonevich allegedly both intended to distribute drugs does not
prove that they were in a conspiracy or working toward a shared
goal. The court made this point explicit when it said that a
conspiracy requires "a joint purpose" regarding which "the members
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of [the] alleged conspiracy in some way or manner came to an actual
mutual understanding or agreement that they would jointly try to
accomplish the conspiratorial objective." Summarizing the
instruction, the district court stated that "the crime of
conspiracy requires the government to prove beyond a reasonable
doubt the existence of a conspiracy with the objective as alleged
in the indictment, and that the defendant knowingly and
intentionally joined in that conspiracy intending to help bring
about its objective. If the government fails to prove either of
those things beyond a reasonable doubt, then the government will
not have proved the offense as charged . . . ." This was an
accurate statement of the law.
In contrast, Symonevich's proposed instruction failed to
capture the nuances articulated in Boidi and discussed in Part
II.C, namely, that while proof of redistribution may not
necessarily prove a conspiracy to distribute, it may be sufficient
in some circumstances. 568 F.3d at 29-30 (holding that a
continuing purchase and sale relationship in combination with the
dealers' knowledge of the defendant's redistribution permits a jury
to infer an agreement between the dealers and defendant that the
defendant possess and distribute the drugs to advance a common
conspiratorial goal). The proposed instruction was a misstatement
of the law and could have misled the jury into believing - as
Symonevich unconvincingly argues on appeal - that evidence of
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Symonevich's intent to resell was irrelevant. The instruction
given was accurate and adequate. The district court did not abuse
its discretion by wording the instruction as it did.
Affirmed.
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