          United States Court of Appeals
                     For the First Circuit


No. 17-1569

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         OBINNA OBIORA,

                      Defendant, Appellant.


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

          [Hon. William G. Young, U.S. District Judge]


                             Before

                 Torruella, Kayatta, and Barron,
                         Circuit Judges.


     Benjamin Brooks, with whom Good Schneider Cormier & Fried was
on brief, for appellant.
     Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellee.


                        December 11, 2018
           KAYATTA, Circuit Judge.          Following a jury trial, Obinna

Obiora was convicted of conspiracy to possess with intent to

distribute heroin, and was sentenced to 120 months' imprisonment,

followed by 36 months of supervised release.             On appeal, Obiora

claims that a variety of alleged errors undermined the integrity

of the jury's verdict and the appropriateness of his sentence.

For the following reasons, we affirm.

                                   I.

           We first address Obiora's challenge to the sufficiency

of the evidence against him.      We describe the record relevant to

such a challenge in the light most favorable to the jury verdict.

See United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir.

2015).

           Federal law enforcement officers became aware of Obiora

through   their   investigation   of    a    Boston   heroin   dealer   named

Antoine. Agents obtained approval to wiretap six phones associated

with Antoine’s activities.    In several of these intercepted calls,

Chukwuma Obiora -- Obinna Obiora's brother -- arranged for Obinna

Obiora to supply heroin to Antoine.x1          On October 3, 2015, the day

after one of these conversations, a law enforcement agent observed

a car registered to Obiora arrive at Antoine's home.            Pole camera

footage showed a man who resembled Obiora exit the car, embrace


1 For clarity, we refer to Chukwuma Obiora as "Chukwuma" and
defendant Obinna Obiora as "Obiora."


                                       - 2 -
Antoine, and then, with Antoine, disappear from view.                     Shortly

thereafter, the man resembling Obiora returned to the car and drove

off.    Within about twenty minutes, Obiora called Antoine and

complained, "What just happened today is not necessary . . . we

don't   need   all    that."        For   the   next   several   weeks,    Obiora

unsuccessfully       tried     to   obtain      payment   from   Antoine,     who

apparently     stiffed   Obiora      somehow      in   connection   with    their

October 3 interaction.

             The federal government indicted Obiora for a single

count of conspiracy to possess with intent to distribute heroin in

violation of 21 U.S.C. §§ 846 and 841.                 Several co-conspirators

were indicted for additional drug and gun crimes.                At trial, the

government's theory was that Obiora and Chukwuma were Antoine's

heroin suppliers until Antoine took their heroin without paying on

October 3.     The jury found Obiora guilty of conspiracy with intent

to distribute heroin, and also found him responsible for at least

one kilogram of heroin.

             On the first day of trial, the district judge informed

the parties about "one other thing," as follows:

             I read it in the most recent Harvard Law Review
             that the Sixth Circuit has just upheld one of
             my colleagues who after a trial goes back to
             the jury room and asks the jury individually
             to just write down what they think the
             sentence should be, and then he uses that as
             some   advice   as   to   how   to   impose   a
             sentence . . . . I've been in touch with the
             judge who has sent me all his information and


                                          - 3 -
          I propose to do that. You can read about it
          in the most recent Harvard Law Review.

          Nothing more appears to have been said about the matter

until Obiora's sentencing hearing, at which the district court

announced that it had conducted the jury poll:

          I was interested to, in a procedure developed
          by my colleague, Judge Gwin, in the Northern
          District of Ohio, where after the verdict was
          received, he informally asked the jury
          privately to advise as to what sentences they
          would impose and then he announces an average
          and he takes that into account.           That
          procedure has been expressly confirmed in
          United States v. Collins, 828 F.3d 386, a
          Sixth Circuit case, 2016, and it's been
          written up with approbation in the Harvard Law
          Review at a note in Volume 130 at Page 793.
          And I've resolved to follow that procedure and
          I followed it in this case.

          The average of the jury's suggestion is that
          he should be sentenced to 19.4 years. That of
          course is higher than constitutionally this
          Court could sentence him, but I announce it.

The court conducted the poll ex parte and off record.   At no point

did either party object to the court's administration of the poll

or to its consideration of the results.

          At an otherwise unremarkable sentencing hearing, the

district court observed that the indictment did not charge that

the one-kilogram drug amount was foreseeable to Obiora. Therefore,

ruled the court, the ten-year mandatory minimum under 21 U.S.C.

§ 841(b)(1)(A)(i) could not be constitutionally applied to him.

Nevertheless, the court found that Obiora was responsible for one



                                 - 4 -
kilogram of heroin, and calculated the Guidelines range based on

that     amount.     The   court     sentenced    Obiora    to     120 months'

imprisonment, which was the maximum sentence within the guidelines

range, to be followed by 36 months of supervised release.

                                     II.

                                      A.

              Obiora appeals the denial of his motions for judgment of

acquittal based on the insufficiency of the evidence.              See Fed. R.

Crim. P. 29(A).      We review a district court's denial of a Rule 29

motion de novo, appraising the evidence in the light most favorable

to the government.      See United States v. Appolon, 695 F.3d 44, 55

(1st Cir. 2012).      "The verdict must stand unless the evidence is

so scant that a rational factfinder could not conclude that the

government proved all the essential elements of the charged crime

beyond    a   reasonable   doubt."     Id.     (quoting   United    States   v.

Rodríguez–Vélez, 597 F.3d 32, 39 (1st Cir. 2010)).

              On appeal, Obiora argues that the government failed to

prove that any substance he delivered to Antoine was actually

heroin.       But the government was under no obligation to do so.

Under the federal drug conspiracy statute, "the criminal agreement

itself is the actus reus."      United States v. Shabani, 513 U.S. 10,

16 (1994).     The government offered ample evidence, including phone

and text exchanges and witness testimony, that could persuade a

rational factfinder -- and did persuade the jury -- that Obiora


                                       - 5 -
agreed   to    supply    Antoine   with   heroin.     The    identity    of   the

substance later delivered is of no consequence in gauging the

record support for the conspiracy conviction.               See, e.g., United

States v. Díaz-Castro, 752 F.3d 101, 107 (1st Cir. 2014) (evidence

of dealings with fake drugs was sufficient to uphold a conviction

for conspiracy to possess with intent to distribute a controlled

substance).

                                      B.

              Obiora next challenges several of the district court's

evidentiary rulings.         We generally review the district court's

evidentiary decisions for abuse of discretion, see United States

v. Amador-Huggins, 799 F.3d 124, 128 (1st Cir. 2015), except to

the extent they turn on an interpretation of law, which we review

de novo, see Burgos-Montes, 786 F.3d at 114.                Not all erroneous

evidentiary rulings require reversal.             "When, as now, an alleged

error    is   not   of   constitutional     dimension,      we   may   affirm   a

conviction so long as we have 'fair assurance, after pondering all

that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error.'"      United States v. Sabean, 885 F.3d 27, 41 (1st Cir. 2018)

(quoting United States v. Melvin, 730 F.3d 29, 39 (1st Cir. 2013)).

In assessing such rulings and the significance of any error, we

view the record "objectively."        United States v. Nelson-Rodríguez,

319 F.3d 12, 23 (1st Cir. 2003).


                                          - 6 -
                                        1.

           Obiora claims that the district court erred by admitting

certain lay opinion testimony of a cooperating witness named

William, who interpreted for the jury several recorded phone calls

between   Antoine    and   his    associates.       William's    interpretive

testimony was based on personal knowledge he gained during several

years in which he bought heroin from Antoine and assisted Antoine's

drug   trade   by   mixing     heroin    with    other   substances.      Some

representative      examples     of    William's   interpretive      testimony

follow:

       Recorded statements                   William's interpretations

Antoine: "Yo, if you could do            "[I]t's    clear   that   it's
something? A quick three hundo           [referring to] 300 grams of
though."                                 heroin."
Antoine: "Your man Gritty was on         Antoine had robbed Chukwuma of
the list"                                his heroin.
Obiora: "I'm not yet on that             A brick means one kilogram of
level they give me what, like a          heroin.
brick at a time."
Obiora: "I've got one brick. I   This refers to one transaction
gave you the first 3, ummm, you  for 300 grams of heroin, then
took another 3 before this 400,  another transaction for 300
you remember?"                   grams, then a transaction for
                                 400 grams.
Obiora: "If I can't return it to Obiora was asking Antoine for
them, you know that's another payment for the drugs Antoine
problem, and I can't get nothing took.
else to bring you."

           Obiora     raises     two    main     objections     to   William's

testimony:     (1) William improperly drew conclusions that should

have been reserved for the jury; and (2) William's testimony

"smuggled in" inadmissible evidence.


                                         - 7 -
            The parties dispute whether Obiora properly preserved

these objections below.        We need not decide whether Obiora's

contemporaneous objection that the conversations being interpreted

"were in English" and the "words were clear" was sufficient to

preserve the argument, because there is no reversible error even

under the abuse-of-discretion standard.

            William's testimony is properly characterized as lay

opinion testimony under Federal Rule of Evidence 701.           See United

States v. Valbrun, 877 F.3d 440, 443 (1st Cir. 2017) (testimony of

a member of a drug-trafficking ring interpreting recorded phone

calls is lay opinion testimony).         Rule 701 allows lay opinion

testimony    that   is    "(a) rationally    based   on   the    witness's

perception; (b) helpful to clearly understanding the witness's

testimony or to determining a fact in issue; and (c) not based on

scientific, technical, or other specialized knowledge within the

scope of Rule 702."      Although the district court has "considerable

discretion" in deciding whether to admit lay opinion testimony,

United States v. Valdivia, 680 F.3d 33, 51 (1st Cir. 2012), "the

rule requires exclusion 'where the witness is no better suited

than the jury to make the judgment at issue . . . .'"             Valbrun,

877 F.3d at 443 (quoting United States v. Vázquez–Rivera, 665 F.3d

351, 363 (1st Cir. 2011)).

            Obiora argues that William's testimony "should have been

limited to explaining the typical meaning of particular words used


                                     - 8 -
by members of Antoine's conspiracy rather than interpreting the

overall meaning and import of the conversations between the parties

to the above-described phone calls."     Reviewing the interpretative

testimony, for the most part we see no such neat dichotomy between

individual words and overall meaning. In each instance, a peculiar

usage of otherwise ordinary words (e.g., "do something") combined

with jargon (e.g., "hundo") generated the meaning of a sentence,

which William succinctly proffered.           We do acknowledge that in

some instances the jurors may well have understood the gist of a

call once they knew its subject was heroin, but we see no reason

to require William to parse his interpretative testimony word by

word as if he were a foreign language dictionary rather than an

interpreter     of   a   conversation.       After   all,   this   kind   of

interpretive testimony is helpful not only because the witness can

define terms that are unfamiliar to the jury, but also because the

witness can "provide needed context to the events that were

transpiring."    Valbrun, 877 F.3d at 444.

          Obiora's alternative claim that William's interpretive

testimony became a way of "smuggling in inadmissible evidence" is

similarly unsuccessful.      Cf. United States v. Albertelli, 687 F.3d

439, 447 (1st Cir. 2012).        A lay witness may testify based on

personal knowledge to the meaning of words used in a conversation

to which he was not a party.      See, e.g., United States v. Dunston,

851 F.3d 91, 97 (1st Cir. 2017) (holding "without serious question"


                                     - 9 -
that a law enforcement officer with significant experience in

undercover      drug   investigations         was   qualified    by     his       personal

experiences to testify to the meaning of terms used in the drug

trade).       And as for William's non-interpretive testimony, there is

no indication that William was simply parroting what he had been

told by others, rather than relying on his personal knowledge.

                                          2.

               Obiora next argues that the district court abused its

discretion in admitting various out-of-court statements Antoine

made about the October 3 meeting.               The district court ruled that

Obiora    was    engaged    in    a   conspiracy      with    Antoine       "up    to   and

including October 3rd when the heroin was taken from him," and

that any statements made before that day, and in furtherance of

the    conspiracy,     were      therefore     admissible      under    the       hearsay

exemption       for    co-conspirator          statements.            See     Fed.        R.

Evid. 801(d)(2)(E)(statements made by a party's co-conspirator

during and in furtherance of a conspiracy are not hearsay).

However, the district court recognized that statements made after

the co-conspirators' apparent falling out on October 3 were not

made during or in furtherance of the conspiracy, and were therefore

not    admissible      under      this   exemption       to    the     hearsay          ban.

Nevertheless, the court declined to strike from the record three

sets     of    statements     containing       Antoine's      description         of    the

October 3       meeting    because     the    court    was    satisfied       that      the


                                             - 10 -
statements were admissible under other hearsay exceptions.                    This,

Obiora argues, was reversible error.

             We need not determine whether the admission of such

testimony was an abuse of discretion because any possible error

was harmless.       The testimony at issue was extraneous.                All three

sets of contested statements describe Antoine's failure to pay for

the heroin obtained at the October 3 meeting.                    Whether Antoine

paid or did not pay for the heroin when Obiora delivered it is

irrelevant to the central question of whether Obiora agreed in the

first place to distribute heroin to Antoine.                Obiora argues that,

"while it is true that the fact of the 'robbery' itself and whether

or not Antoine paid for the heroin might be collateral, that does

not   undo   the    prejudice     caused    by   introducing     the   statements

identifying Chukwuma -- and by implication Obiora -- as the person

who delivered heroin to Antoine."            However, the jury heard copious

other evidence pointing to Obiora as the person who delivered

heroin to Antoine -- including recorded conversations in which

Chukwuma and Antoine arranged the October 3 transaction; testimony

of a detective who observed Obiora's car arrive at Antoine's place

of business; surveillance footage capturing a person resembling

Obiora   exit      the   car     to   interact      with   Antoine;    and    phone

conversations      after   the    transaction       in   which   Obiora    demanded

payment from Antoine.          Given this compelling evidence that Obiora

was dealing with Antoine, we are confident that "the judgment was


                                           - 11 -
not substantially swayed" by the admission of Antoine's out-of-

court statement to that effect.         United States v. Meserve, 271

F.3d 314, 329 (1st Cir. 2001) (quoting Kotteakos v. United States,

328 U.S. 750, 765 (1946)).

                                   C.

          Confronting Obiora's three claims of sentencing error,

we   review     challenged   factual    findings   for   clear   error,

interpretations and applications of law de novo, and judgment calls

for abuse of discretion.     See United States v. Nieves-Mercado, 847

F.3d 37, 42 (1st Cir. 2017).        "[T]he linchpin of a reasonable

sentence is a plausible sentencing rationale and a defensible

result." United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

                                   1.

          Obiora first challenges the district court's jury poll

experiment.     Our treatment of this challenge rests in large part

on the standard of review triggered by counsels' silence below.

The district court told counsel, before trial, what the court

intended to do.     The court's explanation was perhaps a bit short

of detail, but nevertheless provided more than enough information

to elicit reservations or inquiries.        As best we can tell, both

counsel decided to roll the dice, apparently gauging the odds to

be favorable.    The sources the district court referenced indicate

that a juror poll could well be expected to produce sentence

recommendations less severe than would the Guidelines.      See United


                                   - 12 -
States v. Collins, 828 F.3d 386, 388 (6th Cir. 2016) ("With one

exception, every juror recommended a sentence less than half of

the   five-year       mandatory    minimum        accompanying     defendant's

offenses."); Recent Case, Sixth Circuit Holds That Imposing A

Significantly Below-Guidelines Sentence Informed by A Jury Poll Is

Not Substantively Unreasonable. -- United States v. Collins, 828

F.3d 386 (6th Cir. 2016), 130 Harv. L. Rev. 793, 797 (2016).

Further research would have revealed a study, conducted by the

sentencing    judge   in   Collins,      suggesting   that   juries    tend    to

recommend sentences significantly below the Guidelines range.                 See

Judge James S. Gwin, Juror Sentiment on Just Punishment:                Do the

Federal Sentencing Guidelines Reflect Community Values?, 4 Harv.

L. & Pol'y Rev. 173, 187 (2010).          So defense counsel in particular

had ample reason to withhold any objections that have only surfaced

now that the jurors were less merciful than expected.                 In short,

this is an instance of forfeiture, if not outright waiver.

             Assuming forfeiture only, we review for plain error.

See United States v. Cortés-Medina, 819 F.3d 566, 569 (1st Cir.

2016). "Plain error review is not appellant-friendly. It 'entails

four showings:     (1) that an error occurred (2) which was clear or

obvious   and     which    not    only     (3) affected      the   defendant's

substantial rights, but also (4) seriously impaired the fairness,




                                         - 13 -
integrity, or public reputation of judicial proceedings.'"            Id.

(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

            The government agrees with Obiora that the district

court's use of the juror poll was error.        We agree and so hold. In

so concluding, we do not dispute that innovation has a role in

improving the courts' practices. For that reason, we have national

and local bodies, like the U.S. Sentencing Commission and the

Administrative Office of the U.S. Courts, tasked with considering

new ideas and sometimes conducting pilot projects.           With greater

hands-on experience dealing with jurors and sentencing, trial

judges certainly are better positioned than we are to conceive of

innovations that may improve the sentencing process.          But the ad

hoc implementation of any significant innovation, especially off-

the-record and ex parte, can leave circuit courts ill-equipped to

assess the legality, fairness, and efficiency of the experimental

practice.   Here, for example, the docket contains no record of the

polling.    We do not know how the jurors were asked and answered,

or even whether the average sentence recommendation was correctly

calculated.     The   parties   cannot   shed   light   on   the   polling

procedure, as they were excluded, albeit apparently with their

silent acquiescence.

            Judging from the scant information available to us, we

see many reasons to doubt that any benefit can possibly be gained

from considering the results of such a poll in sentencing.          There


                                   - 14 -
is no indication that the jurors knew much of anything about

Obiora's background, history, or relevant characteristics.      Yet,

arming the jurors with such information would likely result in a

contested hearing of some sort, which might not be worth the

effort, costs, and risks.    Perhaps some type of jury polling might

provide information relevant to the work of policymakers like the

U.S. Sentencing Commission.     See Gwin, supra, at 175–76 (arguing

that the Sentencing Commission should sample juror sentencing

opinions).     But it is quite another thing to say that jurors'

opinions on punishment, unaided by context, should be the object

of a judge's attention in sentencing a given individual.

             We therefore turn to the question of whether the error

was sufficiently obvious to satisfy the second prong of plain error

review.   "With respect to matters of law, an error will not be

clear or obvious where the challenged issue of law is unsettled."

United States v. Goodhue, 486 F.3d 52, 57 (1st Cir. 2007).      Our

court has never spoken to the jurors' role in sentencing in non-

capital cases. The Sixth Circuit has actually rejected a challenge

(albeit by the government) to consideration of the results of a

jury poll in sentencing.     See Collins, 828 F.3d at 388–91.   The

case law, in short, provides insufficient direction -- much less

holdings -- to label the error clear, at least where the poll is




                                  - 15 -
taken with counsel's before and after acquiescence. Hence Obiora's

plain error challenge fails.

                                   2.

           Obiora next contends that the district court clearly

erred in determining that one kilogram of heroin was attributable

to him.   In drug conspiracy cases, the quantity of drugs involved

largely determines the guideline sentencing range.          See U.S.S.G.

§ 2D1.1   (sentencing    table).   In    order   to   achieve    procedural

reasonableness, a sentencing court must calculate the Guidelines

range using a reasonable approximation of the weight of the drugs

that are attributable to the defendant.            See United States v.

Demers, 842 F.3d 8, 12 (1st Cir. 2016).          We review drug quantity

calculations for clear error.      See United States v. French, 904

F.3d 111, 123 (1st Cir. 2018).          Obiora offers two reasons for

finding such error.

           First, Obiora argues that the trial court erroneously

deemed itself bound by the jury's drug-quantity finding.             To be

sure, the district court did note that the jury had found beyond

a reasonable doubt that a kilogram of heroin was attributable to

Obiora.    And, on this issue, the jurors did indeed have the

relevant information.      But contrary to Obiora's representation,

the   district   court     recognized    that     "it's   [the    court's]

responsibility to make the finding as to drug quantity."




                                   - 16 -
             Second, Obiora claims there was insufficient evidence to

support the district court's finding by a preponderance of the

evidence that a kilogram of heroin was attributable to Obiora.

When reviewing a district court's drug-quantity determination,

"our job is not to see whether there is any view of the evidence

that might undercut the district court's finding; it is to see

whether   there   is    any    evidence    in   the    record     to   support   the

finding."     United States v. Kinsella, 622 F.3d 75, 86 (1st Cir.

2010) (internal quotation marks omitted).

             Here, such evidence comes in the form of a recorded phone

call, in which Obiora told Antoine, "I've got one brick.                     I gave

you the first 3, ummm, you took another 3 before this 400, you

remember?"      Antoine responded, "yeah."                 Drawing on William's

testimony that a "brick" means a kilogram of heroin, the government

argues that this exchange demonstrates that Obiora and Antoine

engaged in three transactions totaling a kilogram of heroin:                     two

for 300 grams each, and one for 400 grams.                 Now, on appeal, Obiora

reads this double reference to 300 grams as "an instance of oral

repetition which referred to the same 300 grams."                      Perhaps, but

certainly    where     the    second   reference      is    to   "another 3,"    the

district court need not have adopted Obiora's preferred reading,

especially when the remaining evidence pointed to a transaction

for a round kilogram of heroin.




                                          - 17 -
                               3.

          Obiora argues, finally, that the district court abused

its discretion by imposing a harsher sentence on Obiora than it

did on his co-defendants who were more culpable.   But all of the

others pled guilty, and thus provide inapt comparators. See United

States v. Ayala-Vasquez, 751 F.3d 1, 33–34 (1st Cir. 2014).

                              III.

          For the foregoing reasons, we affirm Obiora's conviction

and sentence.




                                - 18 -
