            United States Court of Appeals
                       For the First Circuit

No. 14-2245

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                           JAMES F. FORD,

                        Defendant, Appellant.


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

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


                               Before

                Thompson and Kayatta, Circuit Judges,
                  and Mastroianni,* District Judge.



     Hunter J. Tzovarras for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.


                          October 14, 2016




     *   Of the District of Massachusetts, sitting by designation.
           MASTROIANNI,   District    Judge.      James   F.   Ford,   with

assistance from his wife Darlene and his sons Paul and Jim,1

directed a marijuana-growing operation out of a home in Monroe,

Maine.    Acting on a tip from Jim's girlfriend, police executed a

search warrant and interviewed James, who openly described the

sophisticated operation and discussed his previous marijuana-

growing case in Massachusetts.       After a trial, a jury convicted

him on the four counts charged in the superseding indictment:

conspiracy, manufacturing over 100 marijuana plants, maintaining

a residence for marijuana manufacturing, and possessing a firearm

as a felon.     The district court applied a statutory mandatory

minimum and sentenced James to 120 months in prison followed by

eight years of supervised release.        On appeal, James challenges

his convictions and his sentence.     Finding no reversible error, we

affirm.

                             I.      Background

     On the evening of November 15, 2011, Maine drug enforcement

officers, via loudspeaker, ordered the occupants of James's and

Darlene's home to exit and executed a search warrant. The officers



     1 To avoid confusion, we refer to the members of the Ford
family by their given names.  Moreover, as we did in Darlene's
appeal, we refer to the defendant as "James" and to his son as
"Jim." See United States v. Ford, 821 F.3d 63, 65 n.1 (1st Cir.
2016).

                                  - 2 -
discovered     a     large      marijuana-growing     operation       and   two

disassembled firearms under a makeshift bed outside of one of the

cultivation rooms.

     Later that evening, James discussed the operation in detail

during a recorded interview.            He described the intricate set-up,

which he was "pretty proud of," but lamented the chores and

expenses required by the operation.            For example, James explained

he had to empty air-conditioner buckets every morning or else they

would "run over."          He also had to collect water from a spring in

Dixmont, Maine, using a 150-gallon tank, because the well water at

the home was "horrible" and would "kill" the plants.               In addition,

James's crop "had bug problems," but he used hypoaspis miles, a

type of mite, to control fungus gnats attracted to the marijuana

plants.   James told the officers he normally yielded either eight

or twelve pounds of marijuana every nine weeks,2 had produced

thirty-seven       total    harvests,    and   had   sold   each    pound   for

approximately $2,000.          He deciphered some of the acronyms on a

calendar officers found in the home, explaining "H1" referred to

harvest one and "H2" meant harvest two.

     Notably, James volunteered during the interview "you already

know that I got popped in Mass" when explaining his previous


     2 James initially stated he grew eight pounds every six months
but later in the interview clarified that each harvest cycle was
nine weeks.

                                     - 3 -
growing operation in Wakefield, Massachusetts, which had been

uncovered through a confidential informant.         James revealed he

paid his attorney in Massachusetts over $20,000 yet still "ended

up with a frigging . . . felony conviction because they forced me

to plea bargain."    He further disclosed that he lost a house in

connection with the bust, which he thought was unfair because the

property was not purchased with "drug money" and his "name wasn't

even on the search warrant."

       On April 23, 2013, the grand jury returned a superseding

indictment against members of the Ford family.        Count 1 charged

James, Darlene, and Paul with conspiring to manufacture 100 or

more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and

846.    Count 2 contained the following language:

       On about November 15, 2011, in the District of Maine,
       defendants
                               JAMES F. FORD
                                    AND
                                 PAUL FORD
       Did knowingly and intentionally manufacture a Schedule
       I controlled substance, specifically, 100 or more
       marijuana plants, and did aid and abet such conduct, in
       violation of Title 21, United States Code, Section
       841(a)(1) and Title 18, United States Code, Section 2.

       It is further alleged that the penalty provisions of
       Title 21, United States Code, Section 841(b)(1)(B) apply
       to the conduct described herein.

Count 3 charged James and Darlene with maintaining a residence for

the purpose of manufacturing marijuana in violation of 21 U.S.C.

§ 856(a)(1) and 18 U.S.C. § 2.      And Count 5 charged James with

                                - 4 -
possessing firearms as a convicted felon in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2).

     A three-day jury trial commenced on November 19, 2013. During

opening statements, defense counsel acknowledged that James grew

marijuana.   His attorney instead focused on defending against the

conspiracy charge, rebutting the allegation that James grew over

100 marijuana plants, and asserting that the main purpose of the

residence was not for growing marijuana.    He argued that although

Darlene "ke[pt] track of the family finances," she was not involved

in the growing operation.   Moreover, defense counsel informed the

jury that, while James and Darlene were away, Jim "snuck" his

girlfriend into the house and revealed the operation in an attempt

to demonstrate he could support her.     Jim "wanted to seem like he

was part of" the operation even though he wasn't, defense counsel

insisted.

     James Weaver, a retired special agent with the Maine Drug

Enforcement Agency, testified that Jim and Paul were covered in

"small green flecks" and smelled of marijuana after exiting the

home on the day of the search.    Twenty-four marijuana plants were

found in one room, an additional twenty-four plants in a separate

room, and 163 starter plants in yet another room.    All the plants

had root systems, and the parties stipulated the plants were




                                 - 5 -
marijuana.       The government also played the recorded interview of

James for the jury without objection.

     Weaver further testified that officers discovered two rifles

in the home, both of which the parties stipulated were firearms

under federal law.       He also described calendars found in the home

which listed various figures next to the words "payday," "income,"

and "Boston."       Moreover, Weaver explained, the "Boston" figures

often corresponded to "M" dates on another calendar, which he

believed referred to "the market or move date, the date that

[James] sold that marijuana."               Notebooks, also seized during the

search, listed "$760 J and P payday" on various dates, as well as

other figures next to the word "income."                  Checkbooks reflected

payments    of    $939   and   $831    to    the    electric   company.   Weaver

testified    the    handwriting       from    the   calendars,   notebooks,   and

checkbooks all appeared to be the same as the handwriting from DMV

records filled out by Darlene.3

     Photographs, videos, and emails discovered during the search

were presented to the jury.           The photographs showed James tending

marijuana plants and collecting water from the spring in Dixmont.



     3 Another government witness, Michael Ballback, an asset
forfeiture investigator for the Bureau of Alcohol, Tobacco, and
Firearms, testified the handwriting from checks written by Darlene
appeared to be the same as that in the notebooks and bank deposit
slips. James neither objected to this handwriting testimony at
trial, nor has he challenged it on appeal.

                                       - 6 -
A separate photograph showed Paul collecting water from the same

spring.   A video depicted James firing the Sig Sauer .229 rifle at

a shooting range in Jackson, Maine, with Darlene narrating in the

background.

     The emails contained what appear to be discussions between

members of the Ford family about the growing operation.                For

example, in one email to Paul, James complained that Paul was

"useless at H time."      James told Paul not to come to the house

without calling because he had "expropriated way too much material

recently,     obviously   to   fund   your   journey    into   spaceland."

Nevertheless, James informed Paul: "I am not booting you out of

the business."    In response, Paul complained to James that he did

not understand "this crap about not being on your property," since

he would "have to be over there at least two or three times a week

to get H2O for this place and check on the annex."         Paul continued:

"I don't care if you say the annex is Mom's.           I am still going to

be working on it--lights, CO2, refill, et cetera, et cetera.             I

did [a] load of work on the place getting it running while you

were in Jamaica, thank you very much."          Paul stated he did not

want to hear "any more of this one-man operation bullshit anymore."

     In another email, Paul told James that Darlene had been

"spending a little too much on these cruises things, but, you know

what, she does one hell of a job being a secretarial to this whole



                                  - 7 -
conundrum we call business."      Paul insisted that he be given "a

little bit more of the responsibility," because "when it's just me

and you, we run this place like NASA."     Paul also recommended that

James keep Jim "away from the actual ops" and instead "[s]et him

up doing all of the soil and buckets and fert, cal ni., CO2,

anything we need."   Weaver testified those materials are used for

growing marijuana.   In an email to Darlene, James reported Paul's

comment that she was "a great secretary" and informed her that

Paul brought "my bugs around 8:00 p.m." but did not stay long.

Weaver testified he understood "bugs" to be a reference to the

"hypoaspis miles mites" used to eat fungus growing on marijuana

plants, and James conceded this point during his testimony.

     Michael    Ballback,   the    asset   forfeiture   investigator,

testified James's and Darlene's bank records showed total deposits

of $65,277.93 in 2009, $135,397.55 in 2010, and $80,935.44 in 2011,

totaling $281,610.92, of which $216,156.45 were cash deposits.

Moreover, the deposit dates often corresponded with the "income"

dates listed in the notebooks and the "M" dates listed in the

calendars seized during the search.         James and Darlene paid

$25,336.62 for electricity from 2009 to 2011 and $13,097.98 for

rental cars from 2010 to 2011.

     Jim's ex-girlfriend, Cassandra Spencer, testified for the

government.    Prior to her testimony, James renewed his pretrial



                                  - 8 -
hearsay objection.     Defense counsel argued Spencer's testimony as

to statements made by Jim when he revealed the marijuana operation

to   her   was   not   admissible   under   Federal   Rule   of   Evidence

801(d)(2)(E) as statements "in furtherance of the conspiracy."

Based on the government's proffer and its recollection of Spencer's

testimony during Darlene's trial, the district court ruled that

the statements furthered the conspiracy because

      she was told, basically, not to say anything, that she
      was suspicious about what was going on, and the whole
      purpose of the blindfolding and the displaying of the
      alleged operation was to quell her suspicions and to get
      her to be quiet about them.

      So quieting someone who's suspicious about the
      conspiracy is in furtherance of the conspiracy from my
      viewpoint.

      Spencer testified she became pregnant shortly after she began

dating Jim.      Jim told her that he worked with his father and

brother "building control systems that students would train on"

for a company called Boaleeco,4 but he "never seemed to . . .

maintain an actual work schedule." In particular, the night before

one system was to be delivered, Jim "had gotten so high that he

couldn't wake up."        That surprised Spencer, so she began to

question Jim about what he did for a living.          When asked by the



      4James testified that he built training benches for trade
schools on a contract basis for Boaleeco while living in Maine.
James also testified his sons helped him with the contract work
"quite often" and he would pay them.

                                    - 9 -
prosecutor "what exactly . . . were your questions," Spencer

testified: "Well, you're not working like you said you were, you

know.    And why is it okay that you're not delivering these systems

as you said, you know?      I didn't understand what was going on."

One night, Jim blindfolded Spencer, brought her to his parents'

home while they were away, and showed her the marijuana-growing

operation.

        When the prosecutor asked about Spencer's conversation with

Jim that night, James renewed his hearsay objection.    The district

court again overruled the objection, explaining:

        [I]f you're involved in a drug-trafficking conspiracy
        and you have a serious, intimate relationship with
        someone and they begin to suspect what you're doing and
        you bring them along and you say, this is what we're
        doing, but this is the family business, but you--now
        that you know, you have to keep quiet, that is in
        furtherance of the conspiracy.

Defense counsel pressed that Spencer "never said she was suspicious

that he was doing anything illegal or growing marijuana," but the

court held firm, responding:

        That doesn't matter. He decided to take her in. She was
        suspicious about what he was doing generally. . . .
        Figure that perhaps, over the course of time, she would
        really begin to suspect and would unearth what exactly
        he was doing. So he decided to preempt, bring her in,
        show her the family business, and at that point tell her
        to keep quiet.

        Spencer then testified Jim told her that he and his brother

"did most of the day-to-day work" for the operation, whereas "his



                                - 10 -
dad basically was the overseer."      He stated Darlene "dealt with

all the money," including paying the bills as well as paying the

brothers approximately $500 each week in cash for their work.        Jim

also told Spencer that she could not tell anyone this information;

even Jim's "parents and his brother couldn't know that I was being

let in on this secret."     On cross-examination, Spencer explained

that she questioned Jim's employment because she was concerned

about his ability to support her and their child.       It was after

Spencer raised this concern that Jim revealed the operation and

told her not to worry because he was growing marijuana with his

father.    Spencer eventually tipped off the police to the growing

operation.

     The     government's   final   witness   was   James   Bruce,    a

Massachusetts State Trooper.    After the government proffered that

he would testify as to the prior marijuana-growing operation in

Massachusetts, James objected that the testimony was inadmissible

under Rules 404(b) and 403 of the Federal Rules of Evidence.

Defense counsel argued the testimony was not relevant for any

special purpose because James was not disputing that he knowingly

grew the marijuana in Maine.         The district court disagreed,

explaining that, in the absence of a stipulation, the evidence was

relevant to James's motive, opportunity, intent, preparation,

plan, and knowledge, because the government retained the burden of



                                - 11 -
proving each element of the crime, regardless of the defenses

raised.    In response to defense counsel's argument that the

probative value of the evidence was outweighed by its prejudicial

effect,   the   court   offered    to    provide    the    jury    a    limiting

instruction.

       Bruce testified that he executed a search warrant at 2

Fellsmere Avenue in Wakefield, Massachusetts on October 11, 2002.

He discovered three rooms "devoted entirely to growing marijuana."

The operation was "pretty impressive," with plants in different

stages of maturity and a variety of equipment.            During the search,

James informed Bruce that he did not reside at the house but

actually lived across the street at 5 Fellsmere Avenue.                   James

consented to a search of that home, where Bruce discovered another

grow operation.    Bruce testified the operations were consistent

with   distribution,    rather    than   personal    use.         The   parties

stipulated that James was convicted in state court of possession

of marijuana with intent to manufacture, distribute, or dispense,

a crime punishable by imprisonment for a term exceeding one year

under Massachusetts law.    Documents showed that 2 Fellsmere Avenue

was forfeited to Massachusetts authorities.               The district court

instructed the jury it could not consider this evidence as proof

that James "is a bad person or that . . . he is the kind of person

who is likely to commit a crime," but it could use the evidence to



                                  - 12 -
evaluate his state of mind, intent, motive, opportunity to commit

the charged crimes, or to determine if James acted according to a

plan or by accident or mistake.

     After the government rested, James took the stand, testifying

he moved to Maine because living in Wakefield, Massachusetts became

too expensive.     James intended to continue his contracting work

for Boaleeco, with which his sons helped him, as well as install

heating systems.     James testified he did not buy the Maine house

for the purpose of growing marijuana, but decided to do so when

his work for Boaleeco dried up.      He insisted his family had no

input in the decision and provided no help in the operation.          In

fact, James testified, his wife had no knowledge of the operation,

although his sons did.     But James claimed he encouraged his sons

to get legal jobs.

     James explained that whenever he received a check, he would

cash it and give the money to Darlene, who kept track of the

family's finances in the notebooks.        James testified, however,

that he did not tell Darlene any income was derived from marijuana;

rather, he told her it was from contracting work with Boaleeco.

James and Darlene rented cars often to visit her parents in New

Hampshire   and   Massachusetts.   James    also   sold   marijuana   in

Massachusetts during the trips, but he maintained Darlene was

unaware the vehicles were stocked with marijuana.         James agreed



                                - 13 -
the three grow rooms contained over 100 marijuana plants (including

"starter plants") on the day of the search, all with stems, leaves,

and root systems.

     After the defense rested, James renewed his objection to the

verdict form, which asked the jury to make a finding as to the

number    of    plants       James     was     individually        responsible     for

manufacturing.         Defense       counsel       argued   that    the   superseding

indictment, by alleging both James and Paul manufactured 100 or

more marijuana plants, failed to apprise James that he would be

held responsible for that entire amount.                      The district court

disagreed, explaining the indictment put James on notice he would

have to defend against possessing 100 or more marijuana plants

and, in fact, defense counsel argued during opening statements

that James was not responsible for that amount.                           The court,

however, agreed to give the jury the option of finding James

responsible for manufacturing 50 or more plants, or 100 or more

plants.

     During final instructions, the court reiterated its prior

limiting instruction regarding prior bad acts.                       The court also

instructed     the    jury    that,    if     it    found   James    guilty   of   the

manufacturing charge, it would have to decide "the quantity of

marijuana      that    he,     and      not        anyone    else,    intentionally

manufactured."        After closing arguments and deliberations, the



                                       - 14 -
jury returned its verdict.            It found James guilty on all four

counts.    Moreover, as to Count 2, the jury found that James

manufactured 100 or more marijuana plants.

     At sentencing, James objected to application of 21 U.S.C. §

841(b)(1)(B)(vii), which prescribes a ten-year mandatory minimum

for manufacturing 100 or more marijuana plants if the individual

was previously convicted of a felony drug offense. Defense counsel

again argued, relying on Alleyne v. United States, 133 S. Ct. 2151

(2013), that the superseding indictment did not allege at least

100 plants were attributable solely to James.               Defense counsel

also argued the Eighth Amendment prohibited the mandatory minimum

because   some   states   had    legalized     marijuana   and   the   federal

government was not prosecuting its production in those states.

The district court rejected both arguments.          It did note, however,

that in light of the state legalizations "we are in sort of an odd

time for purposes of marijuana."           After calculating a Sentencing

Guideline range of 97 to 121 months of imprisonment, which produced

a range of 120 to 121 months when combined with the statutory

minimum, the court sentenced James to 120 months in prison to be

followed by eight years of supervised release.

                                II.    Analysis

     James raises four arguments on appeal.           First, he argues the

superseding indictment, in violation of Alleyne, 133 S. Ct. 2151,

                                      - 15 -
did not sufficiently notify him that he would be held responsible

for manufacturing 100 or more marijuana plants. As a result, James

argues, the district court erred in instructing the jury to make

a quantity determination and in applying the ten-year mandatory

minimum sentence set forth in 21 U.S.C. § 841(b)(1)(B)(vii).

Second,   James    argues    the   district    court     improperly   admitted

Spencer's hearsay testimony under the exception for statements "in

furtherance of a conspiracy."        Fed. R. Evid. 801(d)(2)(E).         Third,

James challenges the admission of Bruce's testimony regarding the

Massachusetts     growing   operation.        Lastly,    James   contends     his

sentence is prohibited by the Eighth Amendment.

A.   Alleyne Claim

     We   review   James's    preserved      Alleyne    claim,   based   on    an

allegedly deficient indictment, de novo.                See United States v.

Rose, 802 F.3d 114, 127 (1st Cir. 2015); United States v. Etienne,

772 F.3d 907, 922 (1st Cir. 2014).

     In Alleyne, the Supreme Court, extending the logic of Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000), held that "any fact that

increases the mandatory minimum [penalty for a crime] is an

'element' that must be submitted to the jury" and found beyond a

reasonable doubt.     Alleyne, 133 S. Ct. at 2155.          Both Alleyne and

Apprendi also emphasized the necessity of including these penalty-

increasing facts in the indictment.          See id. at 2159-60; Apprendi,

                                    - 16 -
530 U.S. at 476, 478-80; See United States v. McIvery, 806 F.3d

645, 648-49 (1st Cir. 2015), cert. denied, 2016 WL 1599830 (Oct.

3, 2016); see also United States v. Cotton, 535 U.S. 625, 627

(2002).      "Defining facts that increase a mandatory statutory

minimum to be part of the substantive offense enables the defendant

to predict the legally applicable penalty from the face of the

indictment."    Alleyne, 133 S. Ct. at 2161.     This, in turn, allows

the defendant to prepare an appropriate defense.           Id. at 2160;

Apprendi, 530 U.S. at 478.

     James    asserts   the   superseding   indictment   violated   these

principles because it alleged James and Paul manufactured 100 or

more marijuana plants, which meant James might have produced

between one and 99 plants with Paul producing the remainder.

     "An indictment is sufficient 'if it contains the elements of

the offense charged, fairly informs the defendant of the charges

against which he must defend, and enables him to enter a plea

without fear of double jeopardy.'"     United States v. Parigian, 824

F.3d 5, 9 (1st Cir. 2016) (quoting United States v. Yefsky, 994

F.2d 885, 893 (1st Cir. 1993)).       On the other hand, mistaken or

omitted indictment language is reversible if "it deprived the

appellant of notice or otherwise misled him to his detriment."

United States v. Eirby, 262 F.3d 31, 38 (1st Cir. 2001); see also




                                  - 17 -
United States v. Lanza-Vázquez, 799 F.3d 134, 148 (1st Cir. 2015)

(discussing related concept of prejudicial variance).

        The superseding indictment could have been clearer as to the

number of marijuana plants individually attributable to James and

Paul.     The first clause of Count 2 stated that on November 15,

2011,     James    and    Paul   "[d]id   knowingly   and   intentionally

manufacture . . . 100 or more marijuana plants."        Considering this

language in isolation, it is not entirely clear, for example,

whether James and Paul separately manufactured 100 or more plants

each, or instead together manufactured that amount.         Nevertheless,

reading the indictment as a whole, we conclude James had adequate

notice that he was alleged to be responsible, and thus subject to

punishment, for manufacturing 100 or more marijuana plants.

        Count 2 also included an aiding and abetting charge under 18

U.S.C. § 2.       Specifically, it stated James and Paul "did aid and

abet such conduct, in violation of . . . Title 18, United States

Code, Section 2."        Thus, even under James's theory, the aiding and

abetting language still apprised him that he could be punished for

all 100 plants.      See 18 U.S.C. § 2(a) ("Whoever commits an offense

against the United States or aids, abets, counsels, commands,




                                    - 18 -
induces       or     procures       its   commission,    is     punishable      as   a

principal.").5

        Count 2 further stated "the penalty provisions of" 21 U.S.C.

§ 841(b)(1)(B) apply.               Those provisions set forth, in relevant

part, a ten-year mandatory-minimum penalty for manufacturing "100

or more marihuana plants regardless of weight" if the individual

was previously convicted of a felony drug offense.                       21 U.S.C. §

841(b)(1)(B).6             This penalty language therefore indicated that

James       would    need    to     defend   against   the    allegation      that   he

manufactured 100 or more marijuana plants or else risk application

of the mandatory minimum.

        Moreover, it is clear James had knowledge of this penalty-

increasing         fact,    as    defense    counsel   asserted    during     opening

statements          that    James    "wasn't   manufacturing      over    a   hundred



        5
       Although the statute is written in the disjunctive ("or
aids, abets . . .") and the indictment was in the conjunctive ("and
did aid and abet . . ."), this type of discrepancy is generally
considered permissible. See, e.g., United States v. Farish, 535
F.3d 815, 823-24 (8th Cir. 2008); cf. United States v. Torres-
Colón, 790 F.3d 26, 34 (1st Cir. 2015) ("[I]t is well-established
that where an indictment charges in the conjunctive (using 'and')
but the statute is framed in the disjunctive (using 'or'), the
government need only prove one of the charged acts at trial.").
In any event, this issue has not been raised on appeal, nor would
it change the result in this case.
        6
       Section 841(b)(1)(B) also prescribes a five-year mandatory
minimum penalty for manufacturing 100 or more plants if the
individual had not been previously convicted of a felony drug
offense.

                                          - 19 -
marijuana plants" on the day of the search.              See McIvery, 806 F.3d

at 652 ("[T]he defendant was on ample notice . . . of both the

government's       assertion    that    the     statutory      mandatory      minimum

applied and his potential exposure to that mandatory minimum.").

       Accordingly, this was not a case in which a latent ambiguity

throughout an indictment lured a defendant to construe it one way,

only to be surprised at trial.            Rather, this was a case in which

a patent ambiguity in the syntax of a single sentence was resolved

by the thrust of the indictment as a whole and read by counsel as

placing at issue precisely that which was at issue.

       Even if James could demonstrate an Alleyne error on this

theory, it was clearly harmless beyond a reasonable doubt.                         See

McIvery, 806 F.3d at 649-50 (holding that Alleyne errors are

subject      to    harmless-error       review).         The     district       court

appropriately      instructed    the    jury    to   decide     the     quantity    of

marijuana     that    James,    "and     not    anyone    else,       intentionally

manufactured."       And in response to James's Alleyne argument, the

court added to the verdict form the option of finding James

responsible for manufacturing 50 or more plants, in addition to

100    or   more   plants.      The    jury     ultimately      found    James     had

manufactured 100 or more plants. This finding was fully consistent

with   the    overwhelming     and     uncontroverted       evidence     at    trial.

Indeed, James's defense was that he manufactured the marijuana



                                       - 20 -
alone, and, as the district court noted, he testified unequivocally

to that effect.7      Finally, at oral argument, James's appellate

counsel could not articulate how the trial would have been any

different if the indictment had been clearer.

B.   Hearsay Claim

     James next challenges the admission of Jim's out-of-court

statements to Spencer under Federal Rule of Evidence 801(d)(2)(E).

Under that rule, statements made by a defendant's co-conspirators

"during and in furtherance of the conspiracy" do not qualify as

hearsay.   Fed. R. Evid. 801(d)(2)(E).    "The proponent of such a

statement must prove, by a preponderance of the evidence, that the

declarant and the defendant were members of a conspiracy when the

statement was made, and that the statement was made in furtherance

of the conspiracy."    United States v. Ciresi, 697 F.3d 19, 25 (1st

Cir. 2012).   "A district court's determination 'as to whether this

burden has been met is known in this circuit as a Petrozziello




     7 Although defense counsel asserted during opening statements
that James "wasn't manufacturing over a hundred marijuana plants"
on the day of the search, James testified that his house contained
over 100 plants, all of which had stems, leaves, and root systems,
on that day. His trial strategy instead was that the jury should
not consider the "starter plants" to be marijuana plants.
Consistent with that strategy, defense counsel objected to the
government's proposed instruction defining "plant" and sought to
leave the term undefined.    The district court ultimately sided
with James, and the issue has not been raised on appeal.

                               - 21 -
ruling,' after our holding in United States v. Petrozziello, 548

F.2d 20 (1st Cir. 1977)."      Id. (quoting United States v. Mitchell,

596 F.3d 18, 23 (1st Cir. 2010)).

       "A court may provisionally admit a statement under Rule

801(d)(2)(E) and defer its final Petrozziello ruling until the

close of evidence."       United States v. Paz-Alvarez, 799 F.3d 12, 29

(1st Cir. 2015).        "To preserve a challenge to a district court's

Petrozziello ruling, a defendant must object on hearsay grounds

when   his   or   her    coconspirator's   statement   is   provisionally

admitted and must renew the objection at the close of evidence."

Ciresi, 697 F.3d at 25-26.       Preserved challenges are reviewed for

clear error, and unpreserved challenges are reviewed for plain

error.   Id. at 26.

       The wrinkle in this case is the district court did not

provisionally admit the out-of-court statements but allowed the

complete and final admission during Spencer's testimony.             The

government contends James still had to renew the hearsay objection

at the close of evidence, and his failure to do so renders this

challenge unpreserved and subject to plain error review.           James

asserts he raised the issue before trial, renewed his objection at

trial prior to Spencer's testimony, and renewed the objection yet

again during her testimony.       As the district court made clear it

was not deferring a final ruling on the issue until the close of



                                  - 22 -
evidence,8 James argues he was not required to renew the objection

any further.          We assume, favorably to James, that in light of this

posture, he preserved the hearsay challenge and clear error review

applies.9

        Although "no precise formula" exists, "[g]enerally speaking,

.   .       .   a   coconspirator's   statement   is   considered   to   be   in

furtherance of the conspiracy as long as it tends to promote one

or more of the objects of the conspiracy." United States v. Piper,


        8
       Indeed, when James renewed his hearsay objection during
Spencer's testimony, the district court stated: "Well, that's a-
-that ruling I've already addressed, and I reject."
        9
       This assumption may be overly generous in light of this
circuit's precedents requiring that the Petrozziello determination
be made at the end of all the evidence and placing the onus on the
defendant to request such an express trial-end finding. See United
States v. Mangual-Garcia, 505 F.3d 1, 8-9 (1st Cir. 2007); United
States v. Flemmi, 402 F.3d 79, 94 (1st Cir. 2005); United States
v. Perez-Ruiz, 353 F.3d 1, 12 (1st Cir. 2003); see also United
States v. Richardson, 14 F.3d 666, 669 (1st Cir. 1994) (district
court made final Petrozziello determination at the close of the
government's case rather than at the close of all the evidence,
but defendant's failure to object to this procedure rendered
hearsay challenge unpreserved); United States v. Ortiz, 966 F.2d
707, 715 (1st Cir. 1992) (despite district court's promise to make
a trial-end determination and failure to do so, that error did not
"obviate[] the need for the defendants to lodge an objection at
the proper time"). But see United States v. Sepulveda, 15 F.3d
1161, 1180 (1st Cir. 1993) ("The party at whom the evidence is
aimed must object to the statement when it is offered; and, if the
district court accepts the evidence de bene, must then ask the
court at the close of all the relevant evidence to strike the
statement . . . ." (emphasis added)). Nevertheless, as we explain
below, the district court's error in admitting Spencer's hearsay
testimony was harmless even under the more defendant-friendly
clear error standard of review.         Accordingly, we need not
definitively resolve the preservation issue in this case.

                                       - 23 -
298 F.3d 47, 54 (1st Cir. 2002); see also United States v. LiCausi,

167 F.3d 36, 50 (1st Cir. 1999) ("The statement is admissible if

it 'tends to advance the objects of the conspiracy as opposed to

thwarting its purpose.'" (quoting United Statement v. Fahey, 769

F.2d 829, 838 (1st Cir. 1985)).              The "statement 'need not be

necessary or even important to the conspiracy, or even made to a

co-conspirator, as long as it can be said to advance the goals of

the conspiracy in some way.'"          Piper, 298 F.3d at 54 (quoting

United States v. Martínez-Medina, 279 F.3d 105, 117 (1st Cir.

2002)).      However,      "[a]     judicial     determination        that   a

coconspirator's statement tended to further the conspiracy must be

supported by some plausible basis in the record."              Id.    As such,

"the 'in furtherance' requirement represents a real limitation on

the admissibility of coconspirator statements," and the proponent

"is not entitled to a free pass."        Id.

     The district court found the "in furtherance" requirement was

satisfied on two related grounds.              First, the district court

explained   that   Spencer   became     suspicious     about    the    growing

operation, and Jim's decision to reveal the operation to her,

coupled with his instruction not to tell anyone, was intended "to

quell her suspicions and to get her to be quiet about them."

Alternatively,     the   district    court     found   that    Spencer    "was

suspicious about what [Jim] was doing generally," and rather than



                                    - 24 -
risk that she would eventually "unearth what exactly he was doing,"

Jim   "decided   to   preempt,     bring   her    in,    show   her   the   family

business, and at that point tell her to keep quiet."

      As an initial matter, we assume, since no party has argued

otherwise, that one of the main objects of the conspiracy was to

keep the growing operation secret. See Grunewald v. United States,

353 U.S. 391, 405 (1957) (discussing acts of concealment in

furtherance of a conspiracy).              Nevertheless, we conclude the

district     court    erred   in   finding       Jim's   statements     were    in

furtherance of this objective.

      As to the first ground, there is no support for the district

court's finding that Spencer harbored suspicions about the growing

operation.     She testified only to her concern that Jim was not

gainfully employed and thus could not provide for their soon-to-

be-born child.10 Jim then revealed the operation to her in response

to a legitimate employment concern, telling her not to worry

because he was making money growing marijuana.                  Jim's revelation

under these circumstances--attempting to placate a significant

other's financial worries--cannot reasonably be said to further

the goals of the conspiracy.11        On the contrary, as James asserts,


      10In fact, consistent with Jim's explanation to Spencer,
James testified that Paul and Jim helped with his contracting work
for Boaleeco.
      11Perhaps Jim's instruction to Spencer to keep quiet, in
isolation, could be deemed in furtherance of the conspiracy if it

                                    - 25 -
the statements were in furtherance of Jim's relationship with

Spencer.    Cf. LiCausi, 167 F.3d at 50 (explaining that the co-

conspirator's statement "is more appropriately characterized as

made simply to avoid an argument with [the co-conspirator's]

girlfriend" and thus was not admissible under the in furtherance

hearsay exception).

       The district court's alternative explanation fares no better.

Revealing the operation, in response to a generalized suspicion

regarding Jim's employment status, does not further the goal of

concealing the conspiracy.          Jim's statements constituted "the

polar opposite of an attempt to conceal the conspiracy."               Piper,

298 F.3d at 56.       In fact, his disclosure led directly to the

conspiracy's downfall, as Spencer divulged the operation to the

authorities.    In this regard, Jim's statements proved "antithetic

to the central object of the charged conspiracy."               Id. at 55.

Further, in revealing the operation, Jim was not attempting to

recruit Spencer or otherwise seek her assistance in the scheme.

Rather, he told her the other Ford family members "couldn't know

that   [she]   was   being   let   in   on   this   secret."   Under   these


had been the only out-of-court statement admitted. Here, however,
the "keep quiet" statement came directly after Spencer recounted
Jim's statement as to the family members' roles in the growing
operation, and both statements were admitted together as part of
the "in furtherance" equation.        Under these circumstances,
therefore, an overly narrow parsing of the combined statements is
not appropriate.

                                   - 26 -
circumstances, we believe the district court's rationale stretched

the in furtherance exception too far.12

     We   conclude,   however,   that   this   error   does   not   warrant

reversal.    "A non-constitutional evidentiary error is harmless

(and, therefore, does not require a new trial) so long as it is



     12 Our conclusion also finds support outside of this circuit.
See United States v. Manfre, 368 F.3d 832, 838-39 (8th Cir. 2004)
(explaining that "[a] statement of a conspirator which conceals
the conspiracy without revealing any of the conspirators' illegal
objectives from one who appears suspicious is in furtherance of
the conspiracy," but "'[a] statement that simply informs a listener
of the declarant's criminal activities is not made in furtherance
of the conspiracy.'" (quoting United States v. Mitchell, 31 F.3d
628, 632 (8th Cir. 1994)); City of Tuscaloosa v. Harcros Chemicals,
Inc., 158 F.3d 548, 559 (11th Cir. 1998) ("A statement that merely
discloses the existence of a conspiracy to a non-conspirator, that
merely 'spills the beans,' with no intention of recruiting the
auditor into the conspiracy does not further the conspiracy.");
United States v. Shores, 33 F.3d 438, 444 (4th Cir. 1994)
("Statements made by a co-conspirator to a third party who is not
then a member of the conspiracy are considered to be 'in
furtherance' of the conspiracy if they are designed to induce that
party either to join the conspiracy or to act in a way that will
assist it in accomplishing its objectives . . . but not if they
were intended to be nothing more than idle chatter or casual
conversation about past events." (internal citations omitted));
United States v. Layton, 720 F.2d 548, 556 (9th Cir. 1983)
("Although statements designed to induce a listener to join a
conspiracy   are   admissible,   mere   'casual   admission[s]   of
culpability to someone [the declarant has] individually decided to
trust' are not admissible." (quoting United States v. Fielding,
645 F.2d 719, 726 (9th Cir. 1981)), overruled in part on other
grounds by United States v. W.R. Grace, 526 F.3d 499 (9th Cir.
2008). But see United States v. Phillips, 219 F.3d 404, 419 (5th
Cir. 2000) ("Because Jean attempted to explain to her daughter the
nature of the conspiracy in an effort to exact sympathy so that
the scheme could remain a secret, the statements were undoubtedly
made 'in furtherance' of the conspiracy, and as such were properly
admitted.").

                                 - 27 -
highly probable that the error did not influence the verdict."

Piper, 298 F.3d at 56.

       There is no bright-line rule for divining when
       particular errors that result in a jury's exposure to
       improper evidence are (or are not) harmless. Rather, a
       harmlessness determination demands a panoramic, case-
       specific inquiry considering, among other things, the
       centrality of the tainted material, its uniqueness, its
       prejudicial impact, the uses to which it was put during
       the trial, the relative strengths of the parties' cases,
       and any telltales that furnish clues to the likelihood
       that the error affected the factfinder's resolution of
       a material issue.

Id. at 57 (quoting United States v. Sepulveda, 15 F.3d 1161, 1182

(1st Cir. 1993)).

       The error here is clearly harmless as to three of the counts.

The improperly admitted statements were not relevant to the firearm

charge.     Moreover, the facts supporting the manufacturing and

maintaining a residence for marijuana manufacturing counts were

conceded    at    trial,   rendering   the   hearsay    testimony    plainly

cumulative of other evidence.

       Although somewhat of a closer question, we also conclude the

district court's error was harmless as to the conspiracy count.

Even    without    Spencer's   hearsay     testimony,   there   is   strong

additional evidence pointing to a conspiracy, and we can say "with

fair assurance . . . that the judgment was not substantially swayed

by the error."     United States v. Sasso, 695 F.3d 25, 29 (1st Cir.

2012) (quoting Kotteakos v. United States, 328 U.S. 750, 765



                                  - 28 -
(1946)).      The   conspiracy   evidence    included     admitted    emails

(described in detail in section I supra), in which James and Paul

indicate, in their own words, that the operation was a family

affair.     In addition to the emails, James admitted during his

testimony    that   the   notebooks   and   calendars,    which     contained

various notations and figures corresponding to the production and

sale of marijuana, were maintained by Darlene.

     Given    the    "overwhelming"     evidence     of    a   family-wide

conspiracy, United States v. Tejeda, 974 F.2d 210, 215 (1st Cir.

1992), we conclude "it is 'highly probable' that the result would

have been the same" in the absence of Spencer's hearsay testimony.

United States v. Colon-Munoz, 192 F.3d 210, 229 (1st Cir. 1999)

(quoting United States v. Vigneau, 187 F.3d 82, 85-86 (1st Cir.

1999)).


C.   Admissibility of Bruce's Testimony

     James    additionally    challenges    the   admission    of    Bruce's

testimony, in which he described the prior Massachusetts growing

operation, under Rules 404(b) and 403.             As James raised this

objection at trial, we review the district court's determination

for abuse of discretion.      United States v. Pelletier, 666 F.3d 1,

5 (1st Cir. 2011).

     Under Rule 404(b), "'[e]vidence of a crime, wrong, or other

act is not admissible to prove a person's character in order to

                                 - 29 -
show that on a particular occasion the person acted in accordance

with the character,' i.e., as propensity evidence."      United States

v. Appolon, 715 F.3d 362, 372 (1st Cir. 2013) (quoting Fed. R.

Evid. 404(b)(1)).     "Evidence of other acts may be admissible,

however, if it has 'special relevance,' such as proving 'motive,

opportunity,    intent,   preparation,   plan,   knowledge,   identity,

absence of mistake, or lack of accident,' Fed. R. Evid. 404(b)(2)."

Id. at 372-73 (internal citation omitted).       We utilize a two-part

test in evaluating admissibility under Rule 404(b).      First, we ask

whether the evidence has "special relevance"; then, we apply Rule

403 and consider whether its probative value is substantially

outweighed by the danger of unfair prejudice.      Pelletier, 666 F.3d

at 5.

        Even assuming Bruce's testimony was specially relevant for

one or more non-propensity purposes, its admissibility under Rule

403 is questionable. To be sure, even though James did not contest

the allegation that he intentionally grew the marijuana in Maine,

the government still retained the burden to prove each element of

the charges beyond a reasonable doubt and, as a general matter,

was "entitled to prove its case by evidence of its own choice."

Old Chief v. United States, 519 U.S. 172, 186 (1997); see United

States v. Varoudakis, 233 F.3d 113, 121 (1st Cir. 2000) ("[W]e

have held that evidence of prior bad acts may be probative even



                                - 30 -
when it is relevant to an issue that the defendant does not

contest," because "the fact that the defendant does not contest

the issue for which the prior bad act evidence is offered does

not, 'by itself, remove those issues from the case.'" (quoting

United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir. 1990)).

        But the fact that James did not dispute (and explicitly

conceded) this central allegation renders the probative value of

Bruce's testimony significantly reduced. See Varoudakis, 233 F.3d

at   121-24.    Given    the   other   evidence   presented   and   defense

counsel's concession during opening statements that James grew the

marijuana, the government arguably did not need the testimony

regarding the Massachusetts growing operation.           See id. at 122

(under Rule 403, courts should weigh the risk of unfair prejudice

against "the government's need for the evidence," among other

factors (citing Old Chief, 519 U.S. at 184)); cf. United States v.

Moccia, 681 F.2d 61, 64 (1st Cir. 1982) ("[T]here was so much other

evidence of guilt in the case that it is difficult to believe the

prior    conviction   was   needed.").     Also   weighing    against   the

probative value of the prior growing operation is its remoteness

in time, as the Massachusetts bust occurred nine years before the

search in Maine.      See United States v. Mare, 668 F.3d 35, 41 (1st

Cir. 2012).




                                  - 31 -
      Moreover, the risk of unfair prejudice stemming from Bruce's

testimony was high.      Although this evidence "is not particularly

shocking" and "[t]here is little danger that it swayed the jury

toward a conviction on an emotional basis," the risk is that the

jury used it to infer criminal propensity.          Varoudakis, 233 F.3d

at 122.     That risk is especially pronounced where, as here, the

prior conduct is identical to the charged crime.          See id. at 123;

see also Old Chief, 519 U.S. at 185, 191.               In fact, the grow

operations were extremely similar; they were both large and highly

sophisticated, with plants in different stages of growth and a

variety of equipment.

      Furthermore, in view of the negligible probative value of the

evidence,    it    is   not   clear   the   district    court's   limiting

instructions were sufficient to curb its prejudicial effect.             See

United States v. Garcia-Rosa, 876 F.2d 209, 222 (1st Cir. 1989)

("But the prejudice in this case was so severe and unfair that it

cannot be remedied merely through a limiting instruction. In fact,

if   limiting     instructions   could   remedy   all   such   errors,   the

government would easily be able to circumvent Rules 404(b) and

403."), vacated on other ground sub nom., Rivera-Feliciano v.

United States, 498 U.S. 954 (1990).




                                  - 32 -
      At the same time, however, the nature of James's defense and

the overwhelming evidence of guilt render any error harmless.13

James conceded throughout the trial that he grew the marijuana in

Maine.     Moreover, the jury had already heard, without objection,

the   recorded   interview   of   James,    in   which   he    discussed   the

Massachusetts growing operation.14           Under these circumstances,

therefore, we are confident the verdict would not have been

different if the district court had excluded Bruce's testimony.

See United States v. Hicks, 575 F.3d 130, 143 (1st Cir. 2009).

D.    Eighth Amendment Claim

      Lastly,    James   contends    his     ten-year     mandatory-minimum

sentence for manufacturing marijuana is grossly disproportionate

to the offense and, therefore, violates the Eighth Amendment.               He

points to the public's evolving views on marijuana, including

state-law    decriminalization      and    legalization       (medicinal   and

recreational) measures.      He also cites the federal government's

general policy of not prosecuting cultivation and distribution

activities that are in compliance with "strong and effective [state

marijuana] regulatory and enforcement systems."               Memorandum from


      13Accordingly, we need not definitively decide whether the
district court abused its discretion in performing the Rule 403
balancing.
      14
       Not only did James fail to object to the admission of the
recording at trial, but he has not challenged it on appeal.

                                  - 33 -
James M. Cole, Deputy Att'y Gen., U.S. Dep't of Justice, for All

U.S.          Att'ys      2      (Aug.         29,      2013),       available       at

https://www.justice.gov/iso/opa/resources/3052013829132756857467

.pdf.        We review this Eighth Amendment challenge de novo.                  United

States v. Raymond, 697 F.3d 32, 40 (1st Cir. 2012).

        "The    Eighth    Amendment,        which    forbids      cruel   and   unusual

punishments, contains a 'narrow proportionality principle' that

'applies to noncapital sentences.'"                  Ewing v. California, 538 U.S.

11, 20 (2003) (plurality opinion) (quoting Harmelin v. Michigan,

501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring in part and

concurring in judgment)).15              This principle, however, "'does not

require strict proportionality between crime and sentence' but

rather        'forbids    only       extreme     sentences        that    are   grossly

disproportionate to the crime.'"                Graham v. Florida, 560 U.S. 48,

60 (2010) (quoting Harmelin, 501 U.S. at 997, 1000-01 (Kennedy,

J.,    concurring        in   part    and    concurring      in    judgment)).       In



        15
       Although the Supreme Court's "precedents in this area have
not been a model of clarity," Lockyer v. Andrade, 538 U.S. 63, 72
(2003), the Court has since relied on Justice Kennedy's concurrence
in Harmelin, calling it "[t]he controlling opinion." Graham v.
Florida, 560 U.S. 48, 60 (2010); see also Ewing, 538 U.S. at 23-
24 (plurality opinion); United States v. Cruz-Fernández, 607 F.
App'x 1, 3 (1st Cir. 2015) (unpublished opinion). Moreover, as
Justice Kennedy explained in Harmelin, despite this lack of
clarity, the Court's Eighth Amendment decisions "yield[] some
common principles that give content to the uses and limits of
proportionality review."    Harmelin, 501 U.S. at 998 (Kennedy, J.,
concurring in part and concurring in judgment)).

                                         - 34 -
determining whether a sentence is grossly disproportionate, we

first undertake a threshold comparison between "the gravity of the

offense and the severity of the sentence."             Id. at 60.    If, after

making this threshold comparison, "we conclude there is no 'gross

disproportionality . . . the inquiry ends there.'"             United States

v. Lyons, 740 F.3d 702, 731 (1st Cir. 2014) (quoting Raymond, 697

F.3d at 40).

        We also must be mindful of our "substantial deference to the

broad     authority      that   legislatures     necessarily    possess       in

determining the types and limits of punishments for crimes." Solem

v. Helm, 463 U.S. 277, 290 (1983).            After all, "the Constitution

'does not mandate adoption of any one penological theory.'" Ewing,

538 U.S. at 25 (quoting Harmelin, 501 U.S. at 999 (Kennedy, J.,

concurring in part and concurring in judgment)).            In light of this

deference    and   the    rigorous   standard    for    demonstrating      gross

disproportionality, "a reviewing court rarely will be required to

engage in extended analysis to determine that a sentence is not

constitutionally disproportionate."           Solem, 463 U.S. at 290 n.16.

Indeed, "'[o]utside the context of capital punishment, successful

challenges to the proportionality of particular sentences have

been exceedingly rare.'" Ewing, 538 U.S. at 21 (plurality opinion)

(quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)); see id. at

19-20     (upholding     California's   "three    strikes"     law   and     the



                                     - 35 -
imposition of a 25 years to life sentence for stealing golf clubs);

Harmelin, 501 U.S. at 996 (upholding a sentence of life in prison

without parole for possession of more than 650 grams of cocaine);

Hutto v. Davis, 454 U.S. 370, 374-75 (1982) (upholding a sentence

of forty years for possession and distribution of nine ounces of

marijuana).

        James's    challenge      fails    at    the     threshold      inquiry.      We

recognize that, for Eighth Amendment purposes, "courts must look

beyond    historical      conceptions       to    'the    evolving       standards    of

decency that mark the progress of a maturing society.'"                         Graham,

560 U.S. at 58 (quoting Estelle v. Gamble, 429 U.S. 97, 102

(1976)).     Those evolving standards certainly now point towards a

markedly different level of acceptance of marijuana than in the

past.    "But within extremely broad limits, Congress--which unlike

the judiciary is popularly elected--sets both sentencing policy

and the prescribed range of sentences for federal drug crimes . .

. ."     United States v. Jones, 674 F.3d 88, 96 (1st Cir. 2012).

And,     despite    the    evolving       consensus        on       marijuana   policy,

manufacturing marijuana remains a serious crime under federal law,

subject to the penalties set forth in 21 U.S.C. § 841(b).                            See

United    States    v.    Ford,    625    F.     App'x    4,    7    (1st   Cir.   2015)

(unpublished opinion).




                                         - 36 -
     In   the   end,   James's   arguments   as   to   federal   marijuana

sentencing policy are more appropriately directed at the Executive

and Legislative branches.    "Relief in cases such as this--if there

is any--must come, in the first instance, in the exercise of

restraint and wisdom in the charging decision of the prosecutor,

or in the exercise of the clemency power; both are executive not

judicial functions and leave us powerless to intercede to grant

relief."16   Paladin, 748 F.3d at 454.

                          III.    Conclusion

     For the reasons given, we affirm.




     16At oral argument, the government sought to deflect its role
in the sentence, as if it had no choice in the matter, and place
responsibility in the hands of Congress. But see Jones, 674 F.3d
at 96-97 ("[T]he prosecution also had discretion in this case to
not seek the mandatory sentence.").

                                  - 37 -
