          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.
            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


                                         -2-
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,




                                   -3-
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


                                    -4-
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


                                    -5-
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.1           Sweeney placed Symonevich and Adair under

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



     1
       Later chemical analysis of the recovered substance showed
30.44 grams of heroin.
     2
       On December 12, 2008, one month after his arrest, while out
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.

                                           -6-
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


                                    -7-
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


     3
       Because the parties both use the term "standing" in their
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.

                                    -8-
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




                                    -9-
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


                                         -10-
concluding otherwise would defeat the deterrent purposes of the

exclusionary rule.4        We disagree.      "[T]he exclusionary rule is an

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.



       4
      As a general proposition, an argument that the Supreme Court
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))).

                                      -11-
            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.5   Since we decided

Lochan, the Supreme Court has developed extensive case law on the



     5
       We characterized the trip in Lochan as "long." Despite that
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.


                                -12-
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


                                       -13-
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


      6
       The burden to establish a reasonable expectation of privacy
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).

                                       -14-
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


                                  -15-
conveyed therein.7        We      review a district        court's   evidentiary

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




     7
       Ordinarily we would discuss a challenge to the sufficiency
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.

                                        -16-
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


       8
           See infra note 9.

                                         -17-
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'


                                      -18-
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


                                          -19-
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




                                         -20-
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


     9
        We declined earlier to decide whether Archambault's
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.

                               -21-
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.

                                    -22-
establish that he has joined a distribution conspiracy."10      He

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


     10
       Symonevich's jury instruction argument here is more refined
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.)

                               -23-
          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


                               -24-
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


                                        -25-
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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