          United States Court of Appeals
                        For the First Circuit

No. 14-1403

                            UNITED STATES,

                               Appellee,

                                  v.

                            BAHMAN HABIBI,

                         Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                       FOR THE DISTRICT OF MAINE

              [Hon. D. Brock Hornby, U.S. District Judge]



                                Before

                       Barron, Selya and Stahl,
                            Circuit Judges.




     Jeffrey W. Langholtz on brief for appellant.
     Thomas E. Delahanty, II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.




                            March 20, 2015
                 BARRON,   Circuit   Judge.    Bahman   Habibi     raises    three

challenges to his October 2013 conviction for possession of a

stolen firearm in violation of 18 U.S.C. § 922(j).1                Habibi argues

that       the   District    Court   abused   its   discretion     in   admitting

extensive         evidence   relating   to    his   heroin   use    and     heroin

trafficking. Habibi also argues that the District Court abused its

discretion in allowing an FBI agent involved in the investigation

that led to Habibi's arrest to testify on issues relating to DNA

residue.         And, finally, Habibi argues that the District Court

should have instructed the jury on "transitory possession," as he

sought to build his defense against the possession charge on that

basis.       We find no merit to any of these challenges and therefore

affirm the conviction.

                                         I.

                 We begin with the challenge to the admission of the

evidence of Habibi's past drug use and trafficking.                       Although

"[e]vidence of a crime, wrong, or other act is not admissible to

prove a person's character in order to show that on a particular

occasion the person acted in accordance with the character," Fed.

R. Evid. 404(b)(1), "[t]his evidence may be admissible for another

purpose," Fed. R. Evid. 404(b)(2).              In particular, the Federal

Rules of Evidence specifically enumerate a number of purposes for



       1
       Habibi was sentenced to sixteen months in prison, to be
followed by three years of supervised release.

                                        -2-
which such evidence may be used: "proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake,

or lack of accident."    Fed. R. Evid. 404(b)(2).   And that "list of

purposes is not exhaustive."     United States v. Landry, 631 F.3d

597, 602 (1st Cir. 2011).

          Thus, where a defendant challenges a district court's

admission of prior bad acts evidence, the first question for a

reviewing court is whether the objected-to evidence "has 'special

relevance'" to the case, by which we mean that the objected-to

evidence "is relevant for any purpose apart from showing propensity

to commit a crime."     United States v. Doe, 741 F.3d 217, 229 (1st

Cir. 2013) (quoting United States v. Rodríguez-Berríos, 573 F.3d

55, 64 (1st Cir. 2013)).       For if the evidence does have such

special relevance, then Rule 404(b) does not bar its admission.

          Here, proof of possession was complicated by the fact

that Habibi apparently was not involved in either the initial theft

of the firearm (which was taken from a police officer's personal

vehicle) or the robberies in which the gun was subsequently used.

But the gun was found in Habibi's home, in a secret hiding place.

The government thus sought to show how it got there -- and thus,

that Habibi had knowing possession of the stolen gun2 -- by


     2
      See 18 U.S.C. § 922(j) ("It shall be unlawful for any person
to receive, possess, conceal, store, barter, sell, or dispose of
any stolen firearm or stolen ammunition . . . which is . . . or
which has been shipped or transported in, interstate or foreign
commerce, . . . knowing or having reasonable cause to believe that

                                  -3-
introducing evidence that Habibi had taken possession of the gun

and kept it at his home both in consequence of his ties to two of

his heroin customers and out of his concern that the government

would prosecute him on the basis of his drug trafficking.

             According to the government, therefore, the evidence

relating to Habibi's heroin use and trafficking was not introduced

to   show    Habibi's   propensity   to    engage   in   criminal   behavior.

Instead, the government claims, it introduced this evidence to

provide context for the crime, to help explain how Habibi came to

possess the gun by showing the extent of his relationships to those

who claimed he took possession of it, and to show why he had a

special motive to do so.

             Specifically, the government called two longstanding

heroin customers of Habibi's to testify at trial about how the gun

came to be in Habibi's possession.          These two customers testified

that they, along with a friend who had stolen the gun, hid the gun

prior   to    the   friend's   arrest.     And   these   customers   further

testified that, after their friend's arrest, the two of them, plus

Habibi, together retrieved the gun.          The two government witnesses

explained, however, that it was Habibi who picked up and carried

the gun back to the car, and it was Habibi who hid the gun in a

hole in the wall in the basement of his residence after they had

secreted it away.


the firearm or ammunition was stolen.").

                                     -4-
             The government also put on evidence relating to Habibi's

heroin trafficking to show that Habibi had a special motive to keep

possession of the stolen gun.                 In particular, the two heroin

customers testified that Habibi wanted to hold onto the gun in case

he was arrested for drug trafficking and needed leverage, which he

thought the stolen police gun could provide.

             On this record, the District Court did not abuse its

discretion in concluding that the objected-to evidence was not

"'evidence    .   .   .     extrinsic    to    the    crime   charged'"       that   the

government     introduced       "solely       'for    the     purpose    of    showing

villainous propensity.'"             United States v. Gonyer, 761 F.3d 157,

162 (1st Cir. 2014) (quoting United States v. Roszkowski, 700 F.3d

50, 56 (1st Cir. 2012)).         As the government contends, the evidence

about Habibi's customers frequenting his residence to use heroin

that he supplied them "helped the jury understand the basis for

[those customers'] trusting relationship with Habibi."                    See United

States v. Arias-Montoya, 967 F.2d 708, 712–13 (1st Cir. 1992)

(evidence may have "special relevance" where it shows a "common

scheme or suggested course of continuous dealing" or where "the

earlier bad act [is] likely to provide context or complete the

story of the one subsequently charged"); United States v. Harrison,

679   F.2d   942,     948    (D.C.    Cir.    1982)    (evidence    of    past       drug

distribution admissible to show "course of dealing" and intent on

instant drug charges).          And, as the government further contends,


                                         -5-
the    testimony    from     those    customers     about     Habibi's     heroin

trafficking "was highly probative of Habibi's motive and intent

regarding his possession of the firearm."                   See Fed. R. Evid.

404(b)(2) (motive and intent are valid purposes for prior bad acts

evidence).      Thus, the evidence had more than sufficient "special

relevance" for admission under Rule 404(b).

            That conclusion, however, does not end our inquiry.

Evidence that has "special relevance" may still be inadmissible "if

its probative value is substantially outweighed by a danger of one

or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence."              Fed. R. Evid. 403.        And while

even   Habibi     concedes    that   "some      limited   reference      to    drug

trafficking" "[a]rguably . . . may have been appropriate to

establish motive," he contends that the government leveraged this

evidence to such an extent that it crossed the line set forth by

Rule 403.

            But    district    courts    are     afforded    "especially       wide

latitude" in balancing the relative probative and prejudicial

values of evidence.        United States v. Nai Fook Li, 206 F.3d 78, 84

(1st Cir. 2000) (quoting United States v. Rivera, 83 F.3d 542, 545

(1st   Cir.     1996)).       And    thus,     "[o]nly    rarely   --    and     in

extraordinarily compelling circumstances -- will we, from the vista

of a cold appellate record, reverse a district court's on-the-spot


                                        -6-
judgment concerning the relative weighing of probative value and

unfair effect."    Id. at 84-85 (quoting Freeman v. Package Mach.

Co., 865 F.2d 1331, 1340 (1st Cir. 1988)).

            Given the government's legitimate purpose in showing both

that Habibi had extensive ties to certain heroin users implicated

in the gun theft and that Habibi's prior involvement in drug

trafficking supplied his motive in taking hold of the gun, this

case is not the "rare and 'extraordinarily compelling'" one that

requires us to "'reverse a district court's on-the-spot judgment

concerning the relative weighing of probative value and unfair

effect.'"   United States v. Green, 698 F.3d 48, 56 (1st Cir. 2012)

(quoting Nai Fook Li, 206 F.3d at 84-85); see also United States v.

Burdulis, 753 F.3d 255, 263 (1st Cir. 2014) (reversal under Rule

403 appropriate only if reviewing court is "left with a definite

and firm conviction that the court made a clear error of judgment"

(quoting United States v. Trenkler, 61 F.3d 45, 57 (1st Cir.

1995))).    We thus find no abuse of discretion in the District

Court's admission of the objected-to evidence of Habibi's drug use

and trafficking.    See United States v. Vizcarrondo-Casanova, 763

F.3d 89, 94 (1st Cir.) (affirming admission of "cumulative" and

nearly "overshooting" evidence that was used "to establish that the

defendants had reason to trust one another"), cert. denied, 135 S.

Ct. 307 (2014).




                                 -7-
                                II.

           Habibi next argues that the District Court abused its

discretion in allowing FBI Special Agent Christopher Peavey to

testify on issues relating to DNA residue.        Habibi bases his

challenge on the limitations Rules 701 and 702 of the Federal Rules

of Evidence place on opinion testimony.

           The government asked Agent Peavey -- one of the law

enforcement officers involved in the investigation and arrest -- a

few questions about his experience with DNA residue to address the

fact that test results showed that DNA on the stolen gun did not

belong to Habibi.   Other government witnesses had testified that

Habibi had handled the gun and placed it in his basement.        The

government thus wanted to put on this testimony to show that

detectable DNA is not left every time someone touches an object

with his bare hands.

           After voir dire on the inquiry, and over the objection of

defense counsel, the District Court permitted the government to

ask, and Agent Peavey to answer, as follows:

     (1) Q: Throughout your career as a special agent with
     the FBI, have you worked on cases involving DNA cases?
          A: Yes, I have.

     (2)   Q: What types of cases?
           A: Multiple firearms violations and bank robberies.

     (3) Q: Did any of those cases involve circumstances in
     which your investigation revealed that an individual
     touched or handled a[n] object with a bare hand, but when
     tested, no detectable DNA was found on that object?
          A: Yes.

                                -8-
The District Court also allowed the defense to ask Agent Peavey on

cross-examination whether he could "tell us with any certainty what

[was] the probability of DNA being available on a gun after it[']s

been handled," to which Agent Peavey answered that he could not.

          Habibi   contends   that   the   District   Court   abused   its

discretion in permitting this testimony.      But the Federal Rules of

Evidence provide that lay witnesses, like Agent Peavey, may offer

"testimony in the form of an opinion" so long as such testimony is

"(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 Rule 702." Fed. R. Evid.

701. And, here, the District Court did not abuse its discretion in

concluding that Agent Peavey's objected-to testimony -- if opinion

at all -- satisfied each of those criteria.

          First, Agent Peavey's testimony was "rationally based on

the witness's perception."     Fed. R. Evid. 701(a).          Each of the

prosecutor's three agreed-upon questions concerned Agent Peavey's

experience as a federal law enforcement officer, and each of Agent

Peavey's answers was likewise based on that experience. And, as we

have explained "[t]ime and again," "Rule 701 lets in 'testimony

based on the lay expertise a witness personally acquires through

experience, often on the job.'"      United States v. George, 761 F.3d

42, 59 (1st Cir. 2014) (quoting United States v. Santiago, 560 F.3d


                                  -9-
62, 66 (1st Cir. 2009)); cf. Santiago, 560 F.3d at 66 (testimony of

individual involved in criminal investigation about code words used

in drug deals "rationally based on the perception of the witness"

under Fed R. Evid. 701(a)).

              Second, Agent Peavey's testimony was also "helpful" to

the jury.      Fed. R. Evid. 701(b).            A juror may well have believed

that everyone who touches a gun (or anything else) automatically

leaves DNA residue on it.           The prosecution's colloquy with Agent

Peavey revealed that, at least in Agent Peavey's experience, this

was not the case.           The District Court thus did not abuse its

discretion in finding this testimony, though anecdotal, to be

"helpful" to the jury.        See United States v. Meises, 645 F.3d 5, 16

(1st Cir. 2011) ("The nub of [Rule 701(b)'s] requirement is to

exclude testimony where the witness is no better suited than the

jury to make the judgment at issue, providing assurance[] against

the admission of opinions which would merely tell the jury what

result to reach." (citations and internal quotation marks omitted,

second alteration in original)).

              Finally,     Agent   Peavey       did   not   improperly   base   his

testimony      "on    scientific,        technical,      or    other   specialized

knowledge" that he did not possess.                   Fed. R. Evid. 701(c).     Of

course, as Habibi points out, an expert could have testified on the

DNA residue issue.         But Agent Peavey's challenged testimony, which

was   based    only   on    his    own   investigative        experience,   "f[e]ll


                                         -10-
comfortably   within     the   boundaries    of   permissible     lay   opinion

testimony."      United States v. Valdivia, 680 F.3d 33, 50 (1st Cir.

2012).    And, indeed, the only question asked of Agent Peavey that

was   directed    to   "scientific,    technical,    or   other   specialized

knowledge" was the one defense counsel asked on cross-examination

and to which, tellingly, Agent Peavey responded that he did not

know the answer.         We thus reject Habibi's challenge to this

testimony.3

                                      III.

            Finally, Habibi argues that the District Court committed

reversible error by declining defense counsel's request to instruct

the jury on the defense's so-called "transitory possession" theory.

Defense counsel wanted the jury instructed with "something to the

effect of the following":

      If in certain circumstances the contact [with the
      firearm] is so fleeting as to be inconsequential, you may
      conclude that possession does not attach, and that would
      include without intention so fleeting, without intention
      as to be inconsequential, you may conclude that
      possession does not attach.

The District Court declined to give such an instruction, finding

the factual basis for it lacking.            Instead, the District Court

instructed the jury as follows:

      The term "possess" means to exercise authority, dominion
      or control over something. It is not necessarily the


      3
       Because we conclude there was no abuse of discretion, we
need not resolve whether Habibi waived any objection to Agent
Peavey's testimony.

                                      -11-
     same as legal ownership. Briefness of contact alone does
     not preclude a finding of possession. The law recognizes
     different kinds of possession.

     Possession includes both actual and constructive
     possession. A person who has direct physical control of
     something on or around his or her person is then in
     actual possession of it. A person who's not in actual
     possession, but who has both the power and the intention
     to exercise control over something, is in constructive
     possession of it.

             "To successfully challenge a district court's decision

not to give a requested instruction, the defendant first 'must

present sufficient evidence to be entitled to [the] instruction.'"

United   States   v.   Baird,   712    F.3d   623,   627    (1st   Cir.   2013)

(alteration in original) (quoting United States v. Callipari, 368

F.3d 22, 32 (1st Cir. 2004), vacated on other grounds, Callipari v.

United States, 543 U.S. 1098 (2005)).          This Habibi fails to do.

             There was no dispute at trial that Habibi and his

customer-confederates retrieved the gun on April 25, 2013, and put

the gun in his basement on that same day.                  Nor was there any

dispute that Habibi led the police to the gun -- which was hidden

away in a hole in the wall in Habibi's basement -- on June 14,

2013, the day the police effectuated their warrant at Habibi's

residence.     Nor, finally, was there any evidence at trial that

anyone other than Habibi ever had or took possession of the gun in

between those two dates.        Thus, the evidence admits of only the

conclusion that Habibi was in knowing possession of the gun for at

least fifty days.      See United States v. Ridolfi, 768 F.3d 57, 61


                                      -12-
(1st Cir. 2014) ("Knowing possession may be proven through either

actual or constructive possession," and "[c]onstructive possession

of a firearm may be established when a person 'knowingly has the

power and intention at a given time of exercising dominion and

control over [it] either directly or through others.'" (quoting

United States v. McLean, 409 F.3d 492, 501 (1st Cir. 2005)) (second

alteration in original)).      And such a time period is hardly

fleeting.    See id. at 59-63 (suggesting that ten-day period of

dominion and control was not fleeting).    The District Court thus

did not err in declining to give the requested instruction.

                                 IV.

            For the foregoing reasons, we affirm.




                                -13-
