United States Court of Appeals For the First Circuit

Nos. 12-2301 13-1339

UNITED STATES OF AMERICA,

Appellee,

v.

TOMÁS SEPÚLVEDA-HERNÁNDEZ, a/k/a TOMMY,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Lynch, Chief Judge, Torruella and Selya, Circuit Judges.

Irma R. Valldejuli for appellant. Julia Díaz-Rex, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

May 2, 2014 SELYA, Circuit Judge. The appeals in this criminal case

raise two questions of first impression in this circuit. The first

asks whether the statute doubling the maximum available penalty for

drug distribution in close proximity to a youth center, see

(a), creates an independent substantive offense or,

instead, operates merely as a sentence-enhancing factor. We

conclude that this statute does create an independent offense. We

also conclude, however, that the evidence offered at trial was

insufficient to support convictions for that offense.

This tees up the second novel question, which asks

whether, notwithstanding that the evidence was insufficient to

ground convictions under section 860(a), the defendant can be held

to account on a lesser included offense theory under

(a)(1). We answer this question in the affirmative.

After dispatching the remainder of the defendant's

asseverational array, we vacate the convictions and sentence under

section 860(a), order the entry of convictions under section

841(a)(1), and remand for resentencing. At the same time, we

affirm a related $1,000,000 criminal forfeiture judgment. The tale

follows.

I. TRAVEL OF THE CASE

From 2000 to 2008, defendant-appellant Tomás Sepúlveda-

Hernández was the marijuana supplier to, and a co-owner of, an open

air drug market in La Trocha Ward, Vega Baja, Puerto Rico. This

-2- drug point was located in close proximity to a public basketball

court.

In December of 2008, a federal grand jury indicted the

defendant, along with fifty-eight others, on charges stemming from

the distribution of marijuana and crack cocaine. For reasons that

need not concern us, the crowd thinned and the defendant stood

trial alone. Following ten days of trial, a jury found the

defendant guilty of conspiracy to possess with intent to distribute

at least 50 grams of crack cocaine and at least 100 kilograms of

marijuana (count 1), see

(a)(1) (drug

distribution), 846 (conspiracy), as well as aiding and abetting in

the distribution of at least 100 kilograms of marijuana (count 3),

see

(aiding and abetting). On a special verdict

form, the jury indicated that the culpable activities described in

counts 1 and 3 took place "within 100 [feet] of a private or public

youth center . . . intended primarily for use by persons under 18

years of age." The jury also found against the defendant on a

related criminal forfeiture count (count 4). See

(a). The district court elevated the defendant's offense

level in light of the jury's finding that drug sales had occurred

in close proximity to a youth center, see USSG §2D1.2(a)(1);

imposed a 210-month incarcerative sentence; and set the forfeiture

amount at $1,000,000.

-3- These timely appeals followed. In them, the defendant

mounts a wide variety of challenges to his convictions, his

sentence, and the forfeiture judgment. We examine these challenges

sequentially.

II. SUFFICIENCY OF THE EVIDENCE

The defendant asserts that the government's evidence was

insufficient in two respects. He argues, first, that the proof

failed to establish that the drug point operated within 100 feet of

a youth center. He argues, second, that the government failed to

prove that he had any role at all in the conspiracy.

We review preserved sufficiency challenges de novo. See

United States v. Gobbi,

(1st Cir. 2006). In

conducting our inquiry, we examine the evidence "in the light most

agreeable to the prosecution and decide whether that evidence,

including all plausible inferences extractable therefrom, enables

a rational factfinder to conclude beyond a reasonable doubt that

the defendant committed the charged crime." United States v. Ortiz

de Jesús,

(1st Cir. 2000) (internal quotation mark

omitted). We will uphold a conviction as long as the jury's

verdict "is supported by a plausible rendition of the record."

United States v. Ortiz,

(1st Cir. 1992).

A. The Charged Crimes.

The charges in this case (conspiracy and aiding and

abetting) implicate

(a), which provides that any

-4- person who commits certain drug-related crimes "within 100 feet of

a public or private youth center" shall be "subject to [] twice the

maximum punishment" otherwise authorized. The term "youth center"

is defined as "any recreational facility and/or gymnasium

(including any parking lot appurtenant thereto), intended primarily

for use by persons under 18 years of age, which regularly provides

athletic, civic, or cultural activities."

§ 860(e)(2). The

defendant concedes that the drug market described by the government

was within 100 feet of a public basketball court, but he insists

that the government failed to prove that the facility was "intended

primarily" for use by minors.

As a threshold matter, the parties wrangle about the

quantum of proof required to establish proximity to a "youth

center." The defendant posits that section 860(a) creates an

independent substantive offense, so that proximity to a youth

center is an element of that crime that must be proven to the jury

beyond a reasonable doubt. See United States v. Goodine,

(1st Cir. 2003) (explaining that elements of crimes must be

proven to a jury beyond a reasonable doubt). The government

demurs. It posits that proximity to a youth center is simply a

sentence-enhancing factor that must only be proven to the judge by

preponderant evidence. See

(explaining that sentencing factors

may be found by the judge under a preponderance standard).

-5- The distinction between substantive crimes and sentencing

factors can often be enigmatic. In any given case, however, this

distinction boils down to a question of statutory interpretation.

In interpreting the statute at issue here, we do not

write on a pristine page. No fewer than ten of our sister circuits

have grappled with the same question, and all of them have

concluded that section 860(a) creates an independent substantive

offense, not merely a sentence-enhancing factor. See United States

v. Osborne,

(6th Cir. 2012) (collecting cases).

We have been unable to find (and the government has not cited) any

contrary circuit court precedent.

In our view, the consensus position is correct. A

statute ought to be read as a whole. See FDA v. Brown & Williamson

Tobacco Corp.,

(2000); O'Connell v. Shalala,

(1st Cir. 1996). Here, subsection (d) of section

860 states that persons "convicted under this section" are only

parole-eligible under certain circumstances. Similarly, subsection

(b) discusses the effects of "a prior conviction under subsection

(a)." It would be strange for Congress to describe a person as

having been "convicted" under a sentencing factor — and we do not

think that Congress indulged such an awkward locution here. Thus,

we maintain the unanimity of the courts of appeals and hold that

section 860(a) creates an independent substantive offense.

-6- Given this holding, our task is to plumb the record to

determine whether the evidence is sufficient to allow any rational

factfinder to conclude beyond a reasonable doubt that the

basketball court near the drug market was intended primarily for

the use of minors. The government's evidence on this point is

distressingly vague. It includes the testimony of a longtime

resident that "different people, children would go there to play,

young people, old people, adults." It also includes the testimony

of a municipal official who recounted that the court is made

available for basketball tournaments and other community uses.

Neither piece of evidence speaks to whether the facility was

"intended primarily" for the use of minors.

In an effort to fill this void, the government relies on

several surveillance videos of controlled drug buys, which show a

few children and young people (among many others) in the

background. The government's reliance is mislaid: it defies reason

to think that this video evidence has the capacity to prove that

the basketball court was intended primarily for the use of minors.

Words in a statute have consequences. "[P]rimarily"

means "essentially; mostly; chiefly; principally." The Random

House Dictionary of the English Language 1537 (2d ed. 1987). It

follows, we think, that Congress did not intend for drug sales at

specific locations to trigger sharply increased penalties simply

-7- because minors happen to be in the vicinity of a particular

facility from time to time.

In this case, the government has not offered a shred of

evidence that the municipality either constructed or maintained the

basketball court chiefly or principally for the enjoyment of

minors. Nor has it produced even a scintilla of evidence that the

court's regular use was mainly or mostly by minors. Given this

paucity of proof, the inference that the government asks us to draw

is insupportable.

In a Rumpelstiltskin-like effort to turn dross into gold,

the government lauds the decision in United States v. Lee,

(5th Cir. 2007) (per curiam). There, the court upheld a

youth center proximity finding with respect to drug distribution

near the TEEN F.L.O.W. Youth Center in Midland, Texas. See

. The court's discussion of the issue comprises only two

sentences. It states that "there was uncontroverted and

unchallenged testimony that the [center] was a 'youth center' where

children played basketball."

. That is far removed from

the record here — a record that contains neither evidence of the

municipality's intent to create a facility that might qualify as a

youth center nor evidence quantifying (or even estimating) the

extent to which the basketball court was used by minors.

That ends this aspect of the matter. The government has

the burden of establishing every element of a charged crime, see

-8- United States v. Spinney,

(1st Cir. 1995), and

carrying that burden requires more than hopeful supposition laced

with a large dose of conjecture. Because the evidence here falls

woefully short of establishing that the basketball court was

intended primarily for the use of persons under the age of 18, the

defendant's convictions under section 860(a) cannot stand.

B. The Lesser Included Offense.

Our next task is to gauge the repercussions attendant to

vacating the section 860(a) convictions. The government asks that

we direct the court below to enter convictions for lesser included

offenses — conspiring with, and aiding and abetting, the drug

distribution enterprise in violation of section 841(a)(1) (a

statute that does not include the element of proximity to a youth

center).1 The defendant resists the entry of such an order.

Congress has given the courts of appeals authority to

"affirm, modify, vacate, set aside or reverse any judgment

. . . and direct the entry of such appropriate judgment . . . as

may be just under the circumstances."

. The

courts of appeals have readily embraced the sensible practice of

using section 2106 as a vehicle for entering lesser included

offense convictions. See Rutledge v. United States,

,

1 Section 841(a)(1) makes it unlawful to "distribute . . . or possess with intent to . . . distribute . . . a controlled substance" knowingly or intentionally. Proof of no other or further element is required.

-9- 305-06 (1996) (discussing practice); United States v. Romano,

(1st Cir. 1998) (similar).

The existence of this authority, however, does not give

the courts of appeals free rein. To determine whether the

circumstances of a particular case create an environment suitable

for the exercise of section 2106 authority, the courts have

developed a multi-step test. See, e.g., Rutledge,

n.15; Allison v. United States,

(D.C. Cir. 1969)

(per curiam). Although this court has not yet had the occasion to

speak to this test, we hold today, as have many of our sister

circuits, see, e.g., United States v. Rojas Alvarez,

(5th Cir. 2006); United States v. Dhinsa,

(2d Cir. 2001); United States v. Smith,

(10th Cir.

1993); Allison,

; see also United States v.

Petersen,

, 206-07 & n.6 (3d Cir. 2010) (applying

modified version of test), that the multi-step test provides the

proper analytic framework in a section 2106 inquiry.

We synthesize the teachings of the case law. The multi-

step test demands an inquiry, first, into whether the trial

evidence fails to support one or more elements necessary to the

conviction. If not, further inquiry is unwarranted. If, however,

this first step is satisfied, we proceed to ask, second, whether

the trial evidence is sufficient to sustain each and every element

of a different offense; third, whether that different offense is a

-10- lesser included offense of the offense of conviction; and fourth,

whether any injustice or unfair prejudice will inure to the

defendant by directing the entry of a conviction for the lesser

included offense. We administer this test here.

In the case at hand, the first and third factors need not

detain us. As to the first factor, we already have concluded that

the evidence is insufficient to establish the youth center

proximity element of a section 860(a) offense. See supra Part

II(A). As to the third factor, it is nose-on-the-face plain that

a section 841(a)(1) violation is a lesser included offense of

section 860(a) because the elements of the former are a subset of

the elements of the latter. See United States v. Jones,

(6th Cir. 2007); United States v. Jackson,

(3d Cir. 2006); United States v. Carpenter,

(8th Cir. 2005); United States v. Kakatin,

(9th

Cir. 2000); United States v. Parker,

(4th Cir.

1994); United States v. Freyre-Lazaro,

(11th Cir.

1993); see also United States v. Fenton,

(1st Cir.

2004) (agreeing with parties' concession on point).

The second factor requires consideration of whether the

evidence would clearly support a conviction under section

841(a)(1). The defendant does not gainsay the drug market's

operation but, rather, asserts that no credible evidence

establishes that he played any part in the conspiracy.

-11- To counter this assertion, the government relies

principally on the testimony of a trio of cooperating

coconspirators (Sonia Ortiz, Luis Camacho, and Roy Román De Jesús).

Each of these individuals worked at the drug point in some

capacity, and each testified extensively about its operations. The

three coconspirators identified the defendant as a marijuana

supplier to, and a co-owner of, the drug point. Unless there is

some basis for disregarding it, this evidence suffices to defeat

the defendant's claim of evidentiary insufficiency.

The defendant contends, though, that this inculpatory

testimony is not creditworthy. He argues that these witnesses had

little or no personal knowledge of his role in the business but,

rather, simply parroted what they had heard from others. For

example, Ortiz testified that Jimmy Figueroa, another

coconspirator, "told me [that the defendant] is still the owner of

the drug point." Similarly, Camacho testified that Ortiz and some

pushers at the drug point had spoken to him about the defendant's

leadership role in the drug-distribution ring. Other examples

abound.

The district court admitted the disputed statements into

evidence after conducting a careful inquiry under United States v.

Petrozziello,

(1st Cir. 1977).2 It confirmed

2 Under Petrozziello and its progeny, "[t]he proponent of the statement bears the burden of establishing, by a preponderance of evidence, that a conspiracy embracing both the declarant and the

-12- that each out-of-court statement was made by a coconspirator during

and in furtherance of the conspiracy. See Fed. R. Evid.

801(d)(2)(E); United States v. Piper,

(1st Cir.

2002). The defendant neither challenges the court's Petrozziello

determinations nor articulates any plausible rationale for

disregarding those carefully compiled findings. The challenged

testimony was, therefore, not hearsay and admissible for the truth

of the matter asserted pursuant to the dictates of Rule

801(d)(2)(E). See United States v. Sánchez-Berríos,

(1st Cir. 2005); Ortiz,

.

Undaunted, the defendant makes the curious argument that,

even if this testimony was not excludable as hearsay, it rested on

rumor and, thus, was insufficiently reliable to warrant a guilty

verdict. This argument lacks force. Within wide limits, not

approached here, it is the jury's role — not the role of an

appellate court — to determine the weight to be given to a

witness's testimony and to assess the witness's credibility. See

defendant existed, and that the declarant uttered the statement during and in furtherance of the conspiracy." United States v. Bradshaw,

(1st Cir. 2002) (internal quotation marks omitted). Such statements are typically admitted conditionally, subject to a later finding by the court, supported by extrinsic evidence (other than the statements themselves), "sufficient to delineate the conspiracy and corroborate the declarant's and the defendant's roles in it." United States v. Piper,

(1st Cir. 2002). "The trial court's final determination is known in this circuit as a Petrozziello determination." United States v. Pérez-Ruiz,

(1st Cir. 2003).

-13- United States v. Luna,

(1st Cir. 2011); United

States v. O'Brien,

(1st Cir. 1994). Thus, even

the uncorroborated account of a single coconspirator can ground a

conviction if credited by the factfinder. See, e.g., United States

v. Meises,

(1st Cir. 2011); United States v. Torres-

Galindo,

(1st Cir. 2000).

In this instance, the record contains the accounts of not

one but three participants in the conspiracy, all of whom

incriminate the defendant. The testimony of each of these

witnesses corroborates the others' testimony. The record also

contains circumstantial evidence tending to support an inference of

the defendant's participation in the drug trade, such as his

possession of a money counting machine and the presence of secret

compartments in his car.

To say more on this point would be supererogatory.

Sustaining a conviction requires only that, "eschewing credibility

judgments and drawing all reasonable inferences in favor of the

verdict," a rational jury could have found the defendant guilty

based on the proof presented. United States v. Sepulveda,

(1st Cir. 1993). Measured against this benchmark, the

evidence here supports a finding of the defendant's guilt with

respect to both conspiracy to commit and aiding and abetting drug

distribution simpliciter.

-14- This leaves only the fourth component of the test. That

factor is satisfied because, in the circumstances of this case, the

defendant would not be unfairly prejudiced by an order holding him

responsible for a lesser included offense. After all, references

to section 841(a)(1) are featured prominently in the indictment,

and all of the elements of a section 841(a)(1) charge are

encompassed within a section 860(a) charge. It follows that the

defendant had notice of those elements and both opportunity and

incentive to defend against them.3 See Smith,

.

Here, moreover, the defendant fully availed himself of

that opportunity. He vigorously contested many of the common

elements of the charge, including the government's allegations as

to his role in the unlawful drug distribution enterprise. The

defendant offers no plausible reason to believe that his defense

would have been materially different had the indictment focused on

section 841(a)(1) rather than on section 860(a).

To cinch matters, the special verdict form yields

steadfast assurance that the jury must have found facts beyond a

reasonable doubt on all the elements needed to convict for the

lesser included offense. We conclude, therefore, that the entry of

3 The appellant did not choose to order a transcript of the jury instructions, see Fed. R. App. P. 10(b)(1), but other materials in the record make it appear very likely that a lesser included offense instruction was not given. We do not pursue the point, however, because the presence or absence of such an instruction would not materially impact our prejudice analysis in this case.

-15- a conviction under section 841(a)(1) would not work any injustice.

See Rojas Alvarez,

(vacating conviction under

section 860(a) and directing entry of lesser included offense

conviction under section 841(a)(1)); Parker,

(same);

Smith,

(same).

This brings us full circle. Because every aspect of the

multi-step test has been satisfied here, we vacate the convictions

to the extent that they embody a finding of proximity to a youth

center (section 860(a)) and direct the entry of convictions for

conspiracy and aiding and abetting with respect to the distribution

of drugs simpliciter (section 841(a)(1)).

III. ALLEGED TRIAL ERRORS

The defendant advances three claims of trial error. We

address these claims separately.

A. Alleged Prosecutorial Misconduct.

The defendant avers that the prosecutor frustrated the

fairness of his trial by making improper head and eye movements

during witness testimony, objecting indiscriminately during defense

counsel's opening statement and closing argument, and employing an

inappropriate analogy during rebuttal. Preserved claims of

prosecutorial misconduct are reviewed de novo. See United States

v. Ayala-García,

(1st Cir. 2009). Unpreserved

claims are reviewed only for plain error. See Sánchez-Berríos,

; see also United States v. Duarte,

(1st

-16- Cir. 2001) (limning plain error standard). Here, however, this

distinction is academic because we discern no error, plain or

otherwise.

We begin with the defendant's allegation that the

prosecutor nodded her head and used eye movements to indicate

agreement while cooperating witnesses were testifying, thus

simultaneously leading and vouching for them. It is a baseline

rule that a prosecutor may not "place[] the prestige of her office

behind the government's case by, say, imparting her personal belief

in a witness's veracity." United States v. Pérez-Ruiz,

(1st Cir. 2003). Head-nodding and eye movements, such as are

alleged here, theoretically can cross this line and can constitute

improper vouching. See, e.g., United States v. Collins,

(6th Cir. 1996); United States v. Bermea,

(5th Cir. 1994). Coaching witnesses through, say, head-

nodding and eye movements is different than vouching — but using

gestures for that purpose is equally improper. See, e.g., United

States v. Casas,

(1st Cir. 2005).

The problem here is that the defendant made no

contemporaneous objections to any instances of supposed vouching or

coaching. While he twice voiced accusations of this sort to the

district court, he waited on each occasion until days after the

challenged conduct allegedly occurred. These objections were too

-17- little and too late, and the record contains no evidence that any

head-nodding or other inappropriate gestures ever occurred.

Although this absence of record evidence is enough to

defeat the defendant's claim, there is more. When the defendant

voiced his belated objection for the second time, the trial judge

(an astute and experienced jurist) stated that she had "been

keeping an eye on everyone" and had not observed any impropriety.

The defendant has offered us no sound reason for second-guessing

that first-hand assessment.

The defendant next complains that the prosecutor tainted

the trial by objecting ten times during his counsel's opening

statement and seventeen times during his counsel's closing.

Although constant, overzealous, and unwarranted objections may

unfairly impair a defendant's right to a fair trial, cf. United

States v. Young,

(1985) (explaining that

"interruptions of arguments . . . are matters to be approached

cautiously"), we are unable to find any misconduct here. Most of

the objections about which the defendant complains were either

sustained by the court or elicited clarifications. The rest seem

well within the pale. Counsel should not be held to standards of

perfection, cf. United States v. Polito,

(1st

Cir. 1988) (explaining that a criminal defendant is entitled to a

fair trial, not necessarily a perfect trial), and the failed

objections here do not seem so groundless as to be vexatious.

-18- The defendant's caterwauling about the prosecutor's

chosen analogy fares no better. The government's case was built

largely on the testimony of three relatively low-level

coconspirators who identified the defendant as a co-owner of the

drug point. During the trial, the defendant attempted to undercut

this testimony by stressing that the cooperating witnesses had

little or no personal contact with him. In her final rebuttal

argument, the prosecutor rejoined by likening the defendant to the

chief executive officer of a large, multi-branch bank: though

ordinary branch employees may not ever see the chief executive

officer "filling up the ATM machines," they still know that "he is

the boss."

Although the defendant now argues that this analogy was

inapt, he did not object to it at trial. In this instance, the

prosecutor's analogy was not perfect — indeed, few analogies are —

but it effectively conveyed to the jury the possibility that low-

level employees can have knowledge about an organization's

leadership without having any personal interaction with the leader.

We discern no prosecutorial misconduct.4

4 In all events, an unpreserved objection to a closing argument requires reversal of a conviction "only if the illegitimate portion of the . . . argument so poisoned the well that the trial's outcome was likely affected." United States v. Taylor,

(1st Cir. 1995) (internal quotation marks omitted). It is nothing short of fanciful to suggest that the prosecutor's analogy might have had so damaging an effect.

-19- B. The Jencks Claim.

We turn now to the defendant's claim that, despite a

timely request for disclosure, the government failed to produce

certain materials, in violation of the Jencks Act,

. The materials comprise so-called DEA-6 reports of witness

interviews compiled by the Drug Enforcement Administration (DEA).

The Jencks Act obliges the government, once a witness has

testified, to proffer upon a defendant's timely request any

statement of that witness in its possession, whether or not

exculpatory, that relates to the subject matter of the witness's

testimony. See

§ 3500(b); see also United States v. Colón-

Díaz,

(1st Cir. 2008); United States v. Neal,

(1st Cir. 1994). The statute defines "statement"

to include, in addition to an adopted writing of the witness or an

exact recording of an oral pronouncement, any contemporaneously-

made recording or transcription which amounts to "a substantially

verbatim recital of a[ witness's] oral statement."

(e); see United States v. Gonzalez-Melendez,

(1st Cir. 2009) (per curiam). We review preserved claims of Jencks

error for abuse of discretion, see Colón-Díaz,

,

mindful that a material error of law invariably constitutes an

abuse of discretion, see United States v. Snyder,

(1st Cir. 1998).

-20- During the trial, the defendant made several requests for

Jencks material. Those requests, however, were not limited to

Jencks material but simultaneously sought material potentially

useable for impeachment (so-called Giglio material, see Giglio v.

United States,

(1972)). These combined requests

focused on the DEA-6 reports, including those created following

government interviews of the three testifying coconspirators.

The trial judge, tramping down a well-trod path, see

Palermo v. United States,

(1959), conducted a

careful in camera review of the DEA-6 reports. She ordered

disclosure of two reports, presumably as Giglio material, which

contained potential contradictions of a government witness's

testimony. She refused to order production of the remaining

reports, impliedly finding that those reports did not constitute

Jencks material. The defendant's challenge is addressed to this

implied finding; no Giglio challenge is advanced.

We discern no abuse of discretion in the district court's

refusal to order production of the DEA-6 reports under the Jencks

Act. We have examined the DEA-6 reports that were preserved for

appellate review, and we find them to be narrative summaries

prepared by DEA agents. They are not substantially verbatim

witness accounts. We therefore conclude, as did the Fifth Circuit

when confronted with a group of DEA-6 reports, that the reports

withheld are not Jencks material at all but, rather, "short,

-21- concise, summaries of the witnesses' version of the facts as

recounted to the agents." United States v. Weintraub,

(5th Cir. 1989) (internal quotation mark omitted).

Jencks only inures to statements that can "fairly be said to be the

witness' own rather than the product of the investigator's

selections, interpretations, and interpolations." Palermo,

. The DEA-6 reports at issue here do not pass through

this screen.

C. Multiplication Evidence.

The defendant argues that the district court erred in

admitting certain aspects of the testimony of a forensic chemist

called by the government. The chemist, after being qualified as an

expert, testified as to the average per-bag weights of marijuana

contained in the small and large bags habitually sold at the drug

point. The defendant presses no objection to this testimony.

There was evidence, apart from the chemist's testimony,

that at least 250 bags of each size were sold at the drug point

every day over the life of the conspiracy. Using this evidence as

a foundation, the prosecutor asked the witness to perform some

basic multiplication. This included multiplying the weight that

the witness had ascribed to a typical small bag by 250

(representing daily small-bag sales), multiplying the weight

ascribed to a typical large bag by 250 (representing daily large-

bag sales), multiplying each of those subtotals by 365

-22- (representing days in a year), and then multiplying each of those

subtotals by nine (representing years of operation). The

government elicited this testimony in an apparent effort to

estimate how much marijuana had been sold over the life of the

conspiracy.

The defendant's first objection is that this evidence had

a tendency to mislead or confuse the jury because the underlying

sales volume and years of operation were in dispute. Although the

defendant does not specifically invoke Federal Rule of Evidence

403, his argument seems to be that any probative value that the

evidence might have had was substantially outweighed by its

capacity to mislead or confuse the jury.

Appellate review of district court rulings admitting or

excluding evidence under the aegis of Rule 403 starts with a

recognition that a trial judge is in the best position to assess

the collateral effects of proffered testimony. See United States

v. Raymond,

(1st Cir. 2012). "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." United States v. Pires,

(1st Cir.

2011) (quoting Freeman v. Package Mach. Co.,

, 1340

(1st Cir. 1988)).

-23- The record here offers no reason for disturbing the

district court's Rule 403 determinations. The foundational

quantity-and-time evidence relied on by the government was in the

record. Although these facts were not gospel — it remained for the

jury to decide whether to accept or reject them — the direct

examination was carefully phrased so that the chemist, by doing the

requested multiplication, was not vouching for components such as

how much business was transacted at the drug point or how long the

conspiracy lasted. And the defense was free to build its own

theory, asking the chemist on cross-examination to multiply by

smaller numbers or fewer years. It did not exploit this

opportunity.

The defendant has another string to his bow: he argues

that the multiplication evidence was incorrectly admitted as Rule

702 expert testimony. This argument, too, is futile.

The defendant posits that the testimony was outside the

chemist's field of expertise and, thus, outside the scope of Rule

702. But the Evidence Rules do "not distinguish between expert and

lay witnesses, but rather between expert and lay testimony [so] it

is possible for the same witness to provide both lay and expert

testimony in a single case." Fed. R. Evid. 701 advisory

committee's note on the 2000 amendments (emphasis in original).

The record is indistinct as to whether the challenged

multiplication testimony was admitted as expert testimony under

-24- Rule 702 or as lay opinion testimony under Rule 701. We start,

therefore, by clarifying that point.

"The line between expert testimony under Fed. R. Evid.

702 . . . and lay opinion testimony under Fed. R. Evid. 701

. . . is not easy to draw . . . ." United States v. Colón Osorio,

(1st Cir. 2004). Be that as it may, we have

scant difficulty in concluding that Rule 701 is the better fit for

simple multiplication of the sort that the chemist performed here.

Lay opinion is generally thought to encompass information that can

be deduced "from a process of reasoning familiar in everyday life."

Fed. R. Evid. 701 advisory committee's note on the 2000 amendments

(internal quotation mark omitted). Simple arithmetic, such as

ordinary multiplication, is a paradigmatic example of the type of

everyday activity that goes on in the normal course of human

existence. One does not need a graduate degree in chemistry to

master multiplication: in this country, that subject is universally

taught in elementary schools. Without such a rudimentary skill,

ordinary tasks such as figuring a family's budget, shopping in a

supermarket, and converting a recipe for four into a meal for ten

would assume Herculean proportions.

The bottom line is that the district court did not abuse

its discretion in permitting the chemist to perform simple

multiplication. Nor did it abuse its discretion in admitting the

products of the chemist's multiplication as lay opinion testimony.

-25- IV. SENTENCING ISSUES

The defendant attempts to raise two sentencing issues.

However, the first of these is a non-issue: though the defendant

protests that his 210-month incarcerative sentence is substantively

unreasonable, our vacation of the section 860(a) convictions and

our direction to enter instead section 841(a)(1) convictions, see

supra Part II, require resentencing. See United States v. García-

Ortiz,

(1st Cir. 2011) (calling for resentencing

when partially successful appeal likely affects the "sentencing

package"). Because it is unlikely that the same sentence will be

imposed for these lesser charges, evaluating the substantive

reasonableness of the original sentence would be a purely academic

exercise. See United States v. Wallace,

(1st Cir.

2006).

This leaves the defendant's challenge to the district

court's drug-quantity determination. Even though resentencing is

required, this claim of error remains live. After all, drug

quantity is likely to form an integral part of the revised

sentencing calculus. Cf. United States v. Ventura,

(1st Cir. 2003) (explaining that drug quantity is an important

sentencing factor in narcotics cases).

In a drug conspiracy case, setting the defendant's

guideline range requires an attribution to him of the amount of

drugs that were reasonably foreseeable to him. See United States

-26- v. Colón-Solís,

(1st Cir. 2004). We review a

sentencing court's drug-quantity attribution for clear error. See

United States v. Platte,

(1st Cir. 2009). This

review is deferential, and the district court's determination will

be upheld "so long as the approximation represents a reasoned

estimate of actual quantity." United States v. Cintrón-Echautegui,

(1st Cir. 2010).

The court below started from the supportable foundation

that, on average, the small bags of marijuana sold at the drug

point weighed 0.59 grams and the large bags weighed 1.51 grams

apiece. The court then explained that both kinds of bags were

delivered to the drug point in larger "bundles," with each bundle

comprising 25 bags. The drug point operated around the clock, in

12-hour shifts. The court estimated that five bundles of small

bags and two bundles of large bags were sold during a typical

shift. Noting that the drug point had operated 7 days per week, 52

weeks per year from 1999 through 2008, the court made a series of

calculations and arrived at a total drug quantity of 977 kilograms

of marijuana. In light of the defendant's status as both the

conspiracy's marijuana supplier and a co-owner of the drug point,

the court found that this quantity was reasonably foreseeable to

him.

The defendant's assault on this drug-quantity calculation

centers on the factual predicate employed by the sentencing court.

-27- This assault starts with the court's use of a nine-year figure as

the multiplier representing the life of the conspiracy. He insists

that, regardless of how long the conspiracy lasted, no witness

dated his participation in it to any time before 2000.

Even if we accept the factual premise on which this

argument rests, the argument does not take the defendant very far.

Testimony from a coconspirator (Ortiz) places the defendant in the

conspiracy no later than the beginning of 2000; and the record

supports a finding that the defendant continued to toil within the

conspiracy until his arrest in November 2008. This is an interval

of roughly nine years, so the sentencing court's use of a nine-year

multiplier was not clearly erroneous.

The defendant next questions the district court's

conclusion that each bundle was composed of 25 bags. While he

admits that one of the coconspirators testified to this bundle

size, he points out that other coconspirators testified

differently. This argument is meritless. "[I]f there are two

plausible views of the record, the sentencing court's choice

between them cannot be clearly erroneous." United States v.

Santos,

(1st Cir. 2004).

The third branch of the defendant's attack opens a new

front. The record indicates that, after 2005, the defendant rented

the drug point to others, rather than operating it himself. He

-28- argues that he should not be held fully responsible for the drugs

sold by his tenants.

The defendant's thesis is wrong. The relevant inquiry

for sentencing purposes is not limited to the quantity of drugs

personally handled by the defendant or his direct subordinates but,

rather, encompasses the entire quantity of drugs that the defendant

could reasonably foresee would be within the ambit of the

conspiracy. See United States v. Cortés-Cabán,

(1st

Cir. 2012), cert. denied,

(2013); Colón-Solís,

& n.2. The defendant was still part of the conspiracy

while renting the drug point, and the record leaves little room to

doubt that he was aware of (and, thus, could foresee) the amount of

drugs sold by his tenants. No more was exigible to undergird the

district court's drug-quantity attribution for the period when the

rental agreement was in effect.

We add a coda. On this record, the district court's

drug-quantity finding was not only fully supportable but also

extremely conservative. The record makes manifest that a

considerable volume of crack cocaine was sold at La Trocha on the

defendant's watch. Yet, the court made no reference at all to the

defendant's culpability for this substantial amount of contraband.

V. FORFEITURE

The defendant's final claim of error relates to

forfeiture. He says that the $1,000,000 forfeiture judgment

-29- violates the Excessive Fines Clause of the Constitution, U.S.

Const. amend. VIII.

The forfeiture in this case clearly constituted

punishment for an offense. It followed the defendant's conviction

on felony charges and was imposed as part of his sentence. See

United States v. Bajakajian,

(1998); United

States v. Heldeman,

(1st Cir. 2005). The

Excessive Fines Clause proscribes a criminal forfeiture judgment

for an amount that is "grossly disproportional to the gravity of

[the underlying] offense." Bajakajian,

. Because

the defendant contends for the first time on appeal that the

$1,000,000 forfeiture amount violates this proscription, our review

is limited to plain error. See United States v. Aguasvivas-

Castillo,

(1st Cir. 2012).

The question, then, is whether the forfeiture judgment is

grossly disproportional to the offenses of conviction.5 In

responding to this question, we consider "(1) whether the defendant

falls into the class of persons at whom the criminal statute was

principally directed; (2) other penalties authorized by the

legislature (or the Sentencing Commission); and (3) the harm caused

by the defendant." Heldeman,

. When the forfeiture

judgment is less than the maximum authorized fine, a defendant who

5 For this purpose, we assume, favorably to the defendant, that the correct comparison is to the lesser included offenses (

(a)(1)).

-30- purposes to challenge its constitutionality faces an especially

steep uphill climb.

at 223 & n.1 (collecting cases).

We need not tarry over the first factor. Trafficking in

drugs is conduct that falls within the heartland of the criminal

forfeiture statutes. See United States v. Keene,

(1st Cir. 2003). The second factor likewise favors the government;

the maximum fine for the quantity of marijuana attributable to the

defendant is $5,000,000. See

(b)(1)(B); USSG

§5E1.2(c)(4). Put in this perspective, a forfeiture judgment of

$1,000,000 raises no eyebrows.

The third factor is of a piece with the first two

factors. Drug trafficking is a scourge and is the source of untold

harm. Given the large quantity of drugs purveyed by the conspiracy

and the defendant's leading role in that conspiracy, it strains

credulity to suggest that a $1,000,000 fine is grossly

disproportionate to the harm inflicted.

The defendant has a fallback position. Although the

Bajakajian Court did not explicitly so hold, this circuit has

suggested that "it is not inconceivable that a forfeiture could be

so onerous as to deprive a defendant of his or her future ability

to earn a living, thus implicating the historical concerns

underlying the Excessive Fines Clause." United States v. Levesque,

(1st Cir. 2008). The defendant maintains that the

-31- forfeiture judgment in this case is so extravagant as to deprive

him of his livelihood.

Like the defendant's gross disproportionality argument,

this argument was not raised below. Our review is, therefore,

solely for plain error. See Aguasvivas-Castillo,

.

We discern none.

Assuming, without deciding, that deprivation of

livelihood can constitute a basis for setting aside a criminal

forfeiture judgment, one thing is clear: it is the defendant's

burden to establish a record at the district court level that could

sustain a deprivation of livelihood claim. See

In this case,

the defendant has failed to make such a record.

Here, moreover, the district court made findings,

warranted by the evidence, that during the period of the

defendant's involvement the conspiracy grossed between $6,145,200

and $15,010,600 from marijuana sales alone. The defendant was an

equity partner, yet has not shown what happened to his share of the

profits. With this unanswered question dominating the landscape,

it simply cannot be said that the record compels a conclusion that

the forfeiture judgment has deprived the defendant of his

livelihood.

-32- For these reasons, we leave the forfeiture judgment

undisturbed.6

VI. CONCLUSION

We need go no further. For the reasons elucidated above,

we vacate the defendant's convictions to the extent that they

implicate

(a) and order the entry of new convictions

under

(a)(1). Additionally, we reject the

defendant's other claims of error and affirm the forfeiture

judgment. Finally, we vacate the defendant's sentence and remand

for resentencing on the lesser included offenses.

So Ordered.

- Concurring Opinion Follows -

6 We think it unlikely that the substitution of convictions for lesser included offenses will have any effect on the sentencing court's quantification of the $1,000,000 forfeiture amount. Cf. United States v. Garcia Abrego,

(5th Cir. 1998) (affirming forfeiture judgment, even if based partially on dismissed counts, because core illegal conduct and resulting proceeds were not implicated by the dismissals). But should the court wish to revisit this quantification on remand, it is free to do so.

-33- TORRUELLA, Circuit Judge, concurring. I join in full my

colleagues' well-reasoned opinion. I write in concurrence only to

alert the district court to consider the potential impact of the

Supreme Court's decision in Alleyne v. United States,

(2013). Alleyne requires that all facts increasing a

defendant's statutory minimum sentence be proved beyond a

reasonable doubt.

. Because neither party briefed

the potential application of Alleyne to this case, on remand the

district court is best positioned to consider whether Alleyne's

holding is relevant to Sepúlveda's sentencing under

(a)(1) and its attendant penalty provision,

§ 841(b)(1).

-34-