United States Court of Appeals

For the First Circuit

No. 19-2169

UNITED STATES OF AMERICA,

Appellee,

v.

BERNARD LINDSEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Lynch, Lipez, and Kayatta,

Circuit Judges.

Benjamin Brooks, with whom Good Schneider Cormier & Fried was 

on brief, for appellant. 

Seth R. Aframe, Assistant United States Attorney, with whom 

Scott W. Murray, United States Attorney, was on brief, for 

appellee. 

June 29, 2021
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LYNCH, Circuit Judge. State probation officers 

discovered a black case containing a variety of illegal narcotics 

during a probation compliance check in defendant Bernard Lindsey's 

apartment. The police department obtained and executed a warrant 

to search his apartment, including the two cellphones found near 

Lindsey, for evidence of drug dealing. Based on the evidence 

found, Lindsey was charged and convicted of possession with intent 

to distribute both cocaine, fentanyl, and methamphetamines.

In the district court, Lindsey challenged the warrant on 

the ground that there was no probable cause to search his 

cellphones. On appeal he adds an argument that any evidence taken 

from the phones must be suppressed because the warrant did not 

adequately specify which files on the phones would be searched. 

We reject these arguments along with Lindsey's other arguments on 

appeal and affirm. 

I. Factual Background

In April 2018, Lindsey was living alone in an apartment 

in Concord, New Hampshire. On April 16, his parole officer, 

Jonathan Boisselle, went to Lindsey's apartment with his partner,

Benjamin Densmore, and two canine investigators to perform an 

unannounced home visit. Boisselle approached the apartment 

quietly and at the closed door heard movement inside. He knocked 

on the door and announced his presence several times. Boisselle 

heard a phone go off from inside the apartment but still no one 
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opened the door. After two to three minutes, Lindsey opened the 

door and asked the officers to come in. Lindsey said he did not 

open the door immediately because he had been having trouble with 

his landlord due to bed bugs in the apartment. 

Boisselle entered and saw another man, Bryson London, 

sitting on a couch near the entrance. He smelled marijuana and 

asked Lindsey if he had any illicit substances in the house. 

Lindsey denied having marijuana or any other substances. Boisselle 

next saw that London had a marijuana pipe between his legs and

that there was a marijuana grinder on the couch. While taking 

possession of the grinder and pipe, Boisselle noticed a black case

partially obscured by London's arm and other debris. Boisselle, 

believing the case might be a firearms case, immediately opened it 

and discovered bags of what appeared to be methamphetamines, 

cocaine, heroin, and fentanyl, as well as a scale, plastic bags, 

a metal spoon, tin foil and a plastic knife. The drugs were 

packaged in Ziploc bags and sandwich bags. 

After opening the black case Boisselle and Densmore 

placed London and Lindsey under arrest. Boisselle patted Lindsey

down and found a cellphone as well as approximately $3,400 in cash. 

Lindsey was employed as a server at the time making about $12 per 

hour but said that the money came from his tax return and that he 

had the money on his person because he did not believe in banks. 

The officers later learned that Lindsey had a bank account. The 
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officers seized both the phone on Lindsey's person and a second

cellphone of the same make and model from the table near Lindsey.1

Boisselle next called the Concord Police Department 

("CDP") for assistance. Before the Concord police arrived, New 

Hampshire Department of Corrections Investigator Christopher Ward 

searched the apartment. On the dresser in the bedroom he found 

latex gloves, breathing masks, and a container of what appeared to 

be Inositol powder, an over-the-counter substance which is 

sometimes used to cut drugs. 

Shortly thereafter the CPD obtained a search warrant for 

Lindsey's apartment. Officer Brian Womersley's supporting 

affidavit stated that Lindsey had an "extensive criminal history" 

including "sales/possession of controlled drugs," that a witness 

had observed what appeared to be multiple drug sales out of a black 

Audi registered to Lindsey just five days earlier, and that four 

days earlier CPD officers, after responding to a report of possible 

drug activity, saw the black Audi parked in the area where 

suspected drug activity had been occurring. The affidavit also 

stated that Officer Boisselle had received reports from the 

Plymouth Police Department that Lindsey was selling drugs from his 

residence. 

1 The phones were both LG model MP260s.
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The warrant application went on to describe the various 

drugs and drug paraphernalia which had already been found in the 

apartment and that Lindsey had over $3,000 in cash in his pocket. 

It then stated that "[t]here were numerous cellphones within the 

apartment, and on Lindsey's person. Through [Womersley's] 

training and experience drug dealers will utilize several 

cellphones to conceal their drug business. They often change 

numbers, use 'burner phones' that are prepaid phones that they 

just keep changing once the minutes are used." Based on all of 

these facts the warrant application stated that "there [was]

probable cause to believe that there [was] evidence of the crime 

of Sales of a Controlled Drug/Possession of Controlled Drugs . . 

. and that this evidence [was] located [in the places specified in 

the warrant]." 

"Attachment A" to the warrant application stated the 

search would be for "Illicit Drugs," "Drug Paraphernalia," "Items, 

Documents, and Records relating to Drug Trafficking," "Items which 

are Drug Profits or Evidence of Drug Trafficking Proceeds or to be 

used to obtain Drugs," and "Any and All Electronic Devices" in 

order to "obtain[] any and all evidence . . . to corroborate 

Lindsey's criminal activity." Attachment A also explained that 

the "Addendum to Attachment A" would specify how the officers would 

search any seized electronic devices. However, someone mistakenly 

attached an Addendum which described procedures for searching 
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electronic devices only for investigations into violations of 

several child pornography statutes. 

In executing the warrant, the officers found tin foil, 

a box of Ziploc bags, and a box of sandwich bags in the kitchen. 

The Ziploc and sandwich bags were of the same two types in which 

the drugs in the black case were packaged. 

The government also searched the cellphones found on 

Lindsey's person and on the table in his living room. On one of 

these phones the government found "selfie" photos of Lindsey, a 

text message addressing Lindsey by his middle name, and a number 

of text messages from the preceding months suggesting that Lindsey 

had been engaged in drug dealing.2 

The police also found a series of text messages between 

Lindsey and "Brysin" -- a misspelling of London's first name --

from the week preceding Lindsey's arrest. On April 9, 2018, 

Lindsey received a text message from another person with the phone 

number of someone named "Bryson." Lindsey saved the number under 

"Brysin." On April 11, Bryson texted Lindsey "Prices bro." 

2 For example, on February 6, 2018, Lindsey received a 

text message that said "Hey did you still want to get some vyvanse? 

I filled my script..i was thinking about doing a trade if you're 

interested?" Another text from the same number said "Hey can you 

find me a half g today?" On March 19, 2018, someone texted Lindsey 

asking him if he could "cook [them] something to eat," which a law 

enforcement witness testified was slang for providing drugs. On 

March 22, 2018, someone named "Kahla" asked Lindsey if he could 

provide "another half today." 
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Lindsey asked him to call him on another cellphone number. That 

cellphone number was the number of the other phone seized in 

Lindsey's apartment. On the day of Lindsey's arrest, Bryson texted 

Lindsey at 9:33 AM asking if Lindsey could pick him up. Lindsey 

agreed and Bryson responded "Can you bring the whites with you 

please?" Officers later testified that "whites" is slang for 

cocaine. 

II. Procedural History

Lindsey was indicted on one count of Possession with 

Intent to Distribute Cocaine and Fentanyl under 21 U.S.C 

§§ 841(a)(1) and (b)(1)(C) and one count of Possession with Intent 

to Distribute Five Grams or More of Methamphetamine under 21 U.S.C. 

§§ 841(a)(1) and (b)(viii). 

On January 2, 2019, Lindsey filed a motion to suppress 

the evidence seized from the searches of the two cellphones on the 

grounds that there was not a sufficient "nexus" between the 

cellphones and the drug trafficking offense to conclude that there 

was a "'fair probability that contraband or evidence of a crime 

[would] be found' within the cellphones." The government responded 

that the facts in the warrant provided a "substantial basis" for 

finding probable cause. 
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The district court heard argument on the motion on 

January 30, 2019.3 The district court denied the motion to suppress

"for the reasons set forth by the government." 

After a two-day jury trial on April 16 and 17, 2019, the 

jury found Lindsey guilty on both counts. At trial the government 

introduced, over Lindsey's objection, a number of text messages 

taken from one of the cellphones which indicated that Lindsey had 

been selling drugs in the months before his arrest. Lindsey 

objected on the grounds that evidence of previous drug dealing was 

impermissible propensity evidence under Federal Rule of Evidence 

404(b). The court overruled these Rule 404(b) objections, stating 

I think the cases seem pretty clear to me that 

in cases such as this where intent is the real 

focus of the case, that prior similar conduct 

is particularly relevant, has special 

relevance, and particular relevance to motive, 

intent to distribute, knowledge. Secondarily, 

of course, it provides background, completes 

3 In discussing the scope of Lindsey's argument, the 

district court stated that Lindsey had "kind of an interesting 

hint of an argument" about whether the searches were overbroad in 

allowing searches of the entirety of both cellphones rather than 

only "communications, text messages, phone logs, [and] emails" but 

that the issue was not raised. 

Lindsey's lawyer also raised the fact that the warrant 

application had included an attachment about searching electronic 

devices in child pornography cases rather than drug cases. 

The district court also asked several questions of the 

government to ensure the issue of whether there was an "overly 

broad search [which] produced evidence of other crimes or other 

offenses that [the government was] then going to pursue based on 

this search" was not presented in this case. The government 

confirmed that issue was not presented and it had no intention of 

using the cell phone evidence for that purpose. 
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the narrative that the government's attempting 

. . . to prove. 

The district court gave a limiting instruction to the jury stating 

that

text messages suggesting that the defendant 

previously engaged in conduct similar to that 

charged in this case . . . may not be used to 

prove the defendant's character traits in 

order to argue or show that on a particular 

occasion the defendant acted in accordance 

with that character. . . . You may consider 

that evidence solely for the limited purpose 

of deciding whether the defendant had the 

state of mind or intent to distribute

necessary to commit the crimes charged in the 

indictment. (Emphasis added.)

Lindsey also objected, without specifying on what 

grounds, to the prosecution's asking Officer Boisselle what 

prompted his visit to Lindsey's apartment and to the admission of 

the text message from Lindsey's girlfriend which addressed Lindsey 

by name and was used to prove ownership of the phone.4 The district 

court did not rule on the first objection and overruled the second 

objection. 

Twelve days after the verdict issued, on April 29, 2019, 

Lindsey filed a motion for judgment of acquittal under Federal 

Rule of Criminal Procedure 29, or in the alternative, for a new 

trial under Federal Rule of Criminal Procedure 33. Lindsey argued 

that the evidence was insufficient to sustain the jury verdict 

4 The text message appeared to be part of an interpersonal 

conflict between Lindsey and his girlfriend.
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because the evidence did not show that the black case containing 

the drugs and drug paraphernalia belonged to Lindsey rather than 

to London or that Lindsey knew the black case contained drugs and 

drug paraphernalia. The district court denied the motion on 

October 31, 2019, reasoning that there was adequate evidence for 

the jury to conclude that Lindsey was engaged in drug trafficking, 

that London was merely a customer, and that the black case belonged 

to Lindsey. 

On November 7, 2019, the district court sentenced 

Lindsey to 80 months' imprisonment on both counts, to be served 

concurrently. This timely appeal followed. 

III. Analysis

Lindsey makes several arguments on appeal. We address 

them in turn.

A. The Motion to Suppress

Lindsey's lead argument is that the trial court erred in 

denying his motion to suppress any evidence recovered from the 

cellphones. Lindsey argues both that the warrant application 

failed to demonstrate a sufficient nexus between the suspected 

drug dealing and the cellphones and that the warrant was overly 

broad and failed to meet the particularity requirements of the 

Fourth Amendment. 

In reviewing a motion to suppress, we review legal issues 

de novo and factual findings for clear error. United States v. 
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Mumme, 985 F.3d 25, 35 (1st Cir. 2021). We review a determination 

of probable cause de novo and look only to the "'facts and 

supported opinions' set out within the four corners of the 

affidavit." United States v. Austin, 991 F.3d 51, 55 (1st Cir. 

2021) (quoting United States v. Joubert, 778 F.3d 247, 252 (1st 

Cir. 2015)). 

1. The Nexus Requirement

The Fourth Amendment states that "no Warrants shall 

issue, but upon probable cause, supported by Oath or affirmation, 

and particularly describing the place to be searched, and the 

persons or things to be seized." U.S. Const. amend. IV. "A 

warrant application must demonstrate probable cause to believe 

that (1) a crime has been committed -- the 'commission' element, 

and (2) enumerated evidence of the offense will be found at the 

place searched -- the . . . 'nexus' element." United States v. 

Dixon, 787 F.3d 55, 59 (1st Cir. 2015) (quoting United States v. 

Feliz, 182 F.3d 82, 86 (1st Cir. 1999)). As to the nexus 

requirement, a court need only determine that there is a "'fair

probability' -- not certainty -- that evidence of a crime will be 

found in a particular location" based on the totality of the 

circumstances. Id. at 60. The nexus between the alleged crime 

and place to be searched may be "inferred from the type of crime, 

the nature of the items sought, . . . and normal inferences as to 

where a criminal would hide [evidence of a crime]." United States
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v. Rodrigue, 560 F.3d 29, 33 (1st Cir. 2009) (alteration in 

original) (quoting United States v. Ribeiro, 397 F.3d 43, 49 (1st 

Cir. 2005)). 

Lindsey argues that there was no probable cause to 

believe there was evidence of drug dealing on the cellphones 

because the affidavit offered "no direct evidence" that the phones 

would contain evidence of any drug dealing and the "indirect" 

evidence was not strong enough to create a fair inference that 

there would be evidence of drug dealing on the cellphones. We 

disagree. There was substantial evidence presented in the warrant 

application and supporting affidavit that Lindsey had been engaged 

in drug dealing and that he had delivered drugs in his car to 

various locations. The affidavit also explained that Lindsey had 

more than one cellphone and that it is common for drug dealers to 

use multiple cellphones to conceal their drug business. This was 

enough to support a fair inference that the cellphones would 

contain evidence of drug dealing. See United States v. Adams, 971 

F.3d 22, 32-33 (1st Cir. 2020) (explaining that presence of 

multiple cellphones combined with other evidence of drug dealing 

was sufficient to show probable cause to search five cellphones 

found in defendant's car); see also United States v. HernandezMieses, 931 F.3d 134, 140-41 (1st Cir. 2019) (holding that district 

court did not err in concluding that "plain view" doctrine allowed 
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officers to seize cash, four cellphones, and gun found in kitchen 

because they were "common tools" used in drug dealing). 

Lindsey argues that ruling against him will "advance[] 

a rule that automatically permits the search of any cellphone whose 

owner has been engaged in drug activity, even when there is no 

specific evidence that the phone was used to transact any illicit 

business, so long as the affidavit includes a generalized statement 

that drug dealers often use cellphones to conduct their business."5

Contrary to Lindsey's argument, the warrant was not premised solely 

on the fact that Lindsey "engaged in drug activity." The warrant 

application stated that Lindsey had multiple cellphones and that 

using multiple phones is a common tactic used by drug dealers to 

conceal their drug business. Whether probable cause would have 

5 In making this argument Lindsey relies on United States

v. Roman, 942 F.3d 43 (1st Cir. 2019), in which this court held 

that the district court did not err in concluding that the 

government's statement that drug dealers often store evidence of 

drug crimes in the home, without additional evidence that drugs 

might be found in the defendant's home, did not provide probable 

cause for a warrant to search the home. Id. at 50-52. 

Roman is entirely distinguishable. In Roman, the court 

held that there was an insufficient nexus between the alleged drug 

dealing activity and Roman's home where the warrant application 

tended to support the inference that any evidence would "more 

likely . . . be found at the residence or business of another 

individual," the record did not support the government's 

assertions that Roman was an established drug dealer, and the 

warrant application "relie[d] on the testimony of only one 

informant . . . whose credibility as a source was not established." 

Id. at 51-54. 
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existed had there been only one phone and no evidence of active 

selling, we need not decide.

2. The Particularity Requirement

The Fourth Amendment requires that warrants 

"particularly describ[e] the place to be searched, and the persons 

or things to be seized." U.S. Const. amend. IV. The purpose of 

the particularity requirement "is to prevent wide-ranging general 

searches by the police." United States v. Moss, 936 F.3d 52, 58 

(1st Cir. 2019) (quoting United States v. Bonner, 808 F.2d 864, 

866 (1st Cir. 1986)). "The particularity requirement demands that 

a valid warrant: (1) must supply enough information to guide and 

control the executing agent's judgment in selecting where to search 

and what to seize, and (2) cannot be too broad in the sense that 

it includes items that should not be seized." United States v. 

Kuc, 737 F.3d 129, 133 (1st Cir. 2013) (citing United States v.

Upham, 168 F.3d 532, 535 (1st Cir. 1999)). 

The government argues that Lindsey waived the 

particularity argument by failing to raise it in the district 

court. Lindsey contends that he did raise the argument both in 

his written motion to suppress and during the hearing on his 

motion. We agree with the government that Lindsey failed to 

preserve this argument and so under Federal Rule of Criminal 

Procedure Rule 12(b)(3) and (c)(3) the issue cannot be raised on 
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appeal absent a showing of good cause. Lindsey makes no attempt 

to show good cause for his failure to preserve this issue. 

In general, legal arguments are preserved only when 

"raised squarely" in the district court. United States v. Peake, 

874 F.3d 65, 72 (1st Cir. 2017) (quoting Teamsters, Chauffeurs, 

Warehousemen & Helpers Union, Loc. No. 59 v. Superline Transp. 

Co., 953 F.2d 17, 21 (1st Cir. 1992)). "This rule 'requires 

litigants to spell out their legal theories face-up and squarely 

in the trial court; if a claim is "merely insinuated" rather than 

"actually articulated," that claim ordinarily is deemed 

unpreserved for purposes of appellate review.'" Mancini v. City 

of Providence ex rel. Lombardi, 909 F.3d 32, 46 (1st Cir. 2018)

(quoting Iverson v. City of Bos., 452 F.3d 94, 102 (1st Cir. 

2006)). Unpreserved legal arguments as to motions to suppress are 

unreviewable except upon a showing of good cause. Fed. R. Crim. 

P. 12(c)(3); United States v. Centeno-González, 989 F.3d 36, 48 

(1st Cir. 2021); United States v. Crooker, 688 F.3d 1, 10 (1st 

Cir. 2012) ("There is the potential for both unfairness to the 

government and needless inefficiency in the trial process if 

defendants are not required, at the risk of waiver, to raise all 

of their grounds in pursuing a motion to suppress.").6

6 Under First Circuit precedent Lindsey is not entitled to 

any form of review on this point. See Centeno-González, 989 F.3d 

at 48. But we note that there is a circuit split as to whether 

under Federal Rule of Criminal Procedure 12 defendants may still 
- 16 -

Lindsey did not raise any particularity argument in his 

motion to suppress. He made only a nexus argument, stating that 

"[t]he totality of the circumstances . . . failed to supply 

probable cause" "because [the warrant did] not offer any reason 

why in these circumstances, these particular cellphones would hold 

any information pertinent to a drug transaction." The statement 

in Lindsey's motion to suppress that the warrant application failed 

to "describe what evidence [the officers] expected to find in the 

phones which would pertain to the distribution of controlled 

substances," unaccompanied by any mention of the particularity 

requirement, was not enough to raise or preserve the issue. 

Nor was Lindsey's current argument squarely raised 

during the district court's hearing on the motion. Despite the 

district court's inquiry about exactly what the argument was,

defense counsel never articulated the objection, now made on 

appeal, that the warrant was inherently deficient and no evidence 

seized pursuant to it was admissible because the warrant "failed 

to identify what items could be seized or viewed, thus violating 

the particularity requirement." 

receive plain error review for arguments not made before the 

district court. Compare, e.g., United States v. Bowline, 917 F.3d 

1227, 1229-38 (10th Cir. 2019), United States v. Daniels, 803 F.3d 

335, 351-52 (7th Cir. 2015), and United States v. Anderson, 783 

F.3d 727, 741 (8th Cir. 2015), with United States v. Sperrazza, 

804 F.3d 1113, 1118-21 (11th Cir. 2015), United States v. Vazquez, 

899 F.3d 363, 372-73 (5th Cir. 2018), and United States v. Soto, 

794 F.3d 635, 655 (6th Cir. 2015). 
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Further demonstrating that the particularity argument 

was not squarely raised, no record was developed as to whether the 

warrant could have been narrowed or provided sufficient guidance 

to "control the agent's judgment in selecting what to take." 

United States v. Tiem Trinh, 665 F.3d 1, 15 (1st Cir. 2011) 

(quoting Upham, 168 F.3d at 535); see also Crooker, 688 F.3d at 10 

(explaining the "unfairness" to the government when an untimely 

argument inhibits "full development of the factual record"). The 

record does not comprehensively explain how information is stored 

on modern cellphones or the ways in which the government can access 

that data without roaming through that phone. Nor did Lindsey 

request an evidentiary hearing on the motion. The argument is 

waived, Lindsey has not shown good cause under Rule 12 to consider 

the argument on appeal, and he is not entitled to plain error 

review. 

B. Sufficiency of the Evidence

Lindsey argues that the evidence at trial was 

insufficient to show that he "knowingly and intentionally 

possessed . . . a controlled substance with the specific intent to 

distribute" because there was "no evidence" to suggest that the 

black case containing drugs and drug packaging belonged to Lindsey 

rather than to London. He also asserts that even if there was 

evidence that Lindsey had just sold cocaine to London, that "does 
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not make Mr. Lindsey guilty of also possessing the fentanyl or the 

methamphetamine in the case." 

We review de novo the district court's denial of a 

defendant's Rule 29 motion for a judgment of acquittal. United 

States v. Guzmán-Montañez, 756 F.3d 1, 8 (1st Cir. 2014). "When 

evaluating the sufficiency of evidence, 'we draw the facts and all 

reasonable inferences therefrom in the light most agreeable to the 

jury verdict.'" Id. (quoting United States v. Williams, 717 F.3d 

35, 37-38 (1st Cir. 2013)). The inquiry is whether "any rational 

trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt," and "[d]efendants challenging 

convictions for insufficiency of evidence face an uphill battle on 

appeal." United States v. Millán-Machuca, 991 F.3d 7, 17 (1st 

Cir. 2021) (alteration in original) (first quoting United States

v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005); and then quoting 

United States v. Rodríguez-Martinez, 778 F.3d 367, 371 (1st Cir. 

2015)).

To make out a case of possession with intent to 

distribute a controlled substance under 21 U.S.C. § 841(a), the 

government must show that the defendant "knowingly and 

intentionally possessed, either actually or constructively, a 

controlled substance with the specific intent to distribute." 

United States v. Mendoza-Maisonet, 962 F.3d 1, 12 (1st Cir. 2020)

(alteration in original) (quoting United States v. García-
- 19 -

Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007)). Constructive 

possession exists when a defendant has "dominion and control over 

the area where the contraband was found" and may be established by 

circumstantial evidence. Id. (quoting United States v. PadillaGalarza, 886 F.3d 1, 5 (1st Cir. 2018)).

The evidence was sufficient for the jury to conclude 

that the black case and drugs it contained belonged to Lindsey. 

The text message evidence showed that someone named "Brysin" --

who the jury could readily infer was Bryson London -- had asked 

Lindsey five days before the arrest about his "[p]rices." And on 

the morning of the arrest, "Brysin" asked Lindsey to pick him up 

and bring "the whites," which is a commonly used term for cocaine. 

Lindsey had $3,643 dollars of cash on his person, which the jury 

could fairly infer were drug proceeds. The drugs in the black 

case were packaged in the same type of Ziploc and sandwich bags

found elsewhere in Lindsey's apartment. The officers also found 

breathing masks, latex gloves, and an over-the-counter powder 

commonly used to cut drugs in Lindsey's bedroom. The jury could 

conclude beyond a reasonable doubt that Lindsey was selling drugs 

to London and that the case, which contained drug-packing materials 

and a wide range of drugs in distribution quantities, belonged to 

Lindsey rather than to London. 
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C. The Admission of Text Messages Concerning Prior Drug Dealing

Lindsey argues that the trial court erred in admitting 

text messages which showed Lindsey engaging in past drug dealing 

because the messages were improper propensity evidence. 

Federal Rule of Evidence 404(b)(1) forbids the admission 

of "[e]vidence of any other crime, wrong, or act . . . to prove a 

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

the person acted in accordance with the character." However, such 

evidence "may be admissible for another purpose, such as proving 

motive, opportunity, [or] intent." Fed. R. Evid. 404(b)(2). Under 

the two-part test, if the court determines that the proffered prior 

act evidence has "'special' relevance, i.e., a non-propensity 

relevance," it then must consider whether the evidence should 

nevertheless be excluded under Rule 403 because "its probative 

value is substantially outweighed by a danger of . . . unfair 

prejudice." United States v. Henry, 848 F.3d 1, 8 (1st Cir. 2017) 

(first quoting United States v. Hicks, 575 F.3d 130, 142 (1st Cir. 

2009); and then quoting Fed. R. Evid. 403). We review the 

admission of prior bad acts evidence for abuse of discretion. 

United States v. García-Sierra, 994 F.3d 17, 30 (1st Cir. 2021).

The district court did not abuse its discretion in 

admitting the text messages solely for the purpose of showing that 

Lindsey intended to distribute the drugs in the black case. 

Evidence of past drug dealing may be relevant to show that a 
- 21 -

defendant in possession of drugs intended to sell those drugs. 

See id. at 230 (explaining that in cases charging possession with 

intent to distribute narcotics "we have 'often upheld the admission 

of evidence of prior narcotics involvement to prove knowledge and 

intent'" (quoting United States v. Manning, 79 F.3d 212, 217 (1st 

Cir. 1996))); Henry, 848 F.3d at 8-9 (collecting cases). In this 

case, the admitted text messages were part of a stream of drug 

trafficking communications in the months leading up to Lindsey's 

arrest, and the more recent messages showed that London was his 

customer. The inference to be drawn from the text messages is not 

the impermissible propensity one that because Lindsey had 

previously sold drugs, he must have had an intent to sell drugs in 

April 2018. Rather, the text messages show that Lindsey was 

presently in the business of selling drugs, which, in combination 

with the fact that Lindsey was found in the vicinity of 

distribution-quantity drugs, made it more likely that he intended 

to sell those drugs. The district court also twice gave the jury 

a limiting instruction to ensure that the text messages were not 

considered except to show Lindsey's intent to distribute the drugs 

in the black case. 

D. The Admission of Other Evidence

Lindsey argues that the admission of Officer Boisselle's 

testimony that the purpose of the probation visit was to 

investigate "concerns of noncompliance" with the terms of his 
- 22 -

probation was unduly prejudicial because it "left [the jury] with 

the extremely prejudicial impression that officers showed up to 

Mr. Lindsey's home looking for drugs, and found exactly what they 

were looking for." Lindsey also argues that the admission of a 

text message from his girlfriend was unduly prejudicial "to the 

extent that [it] suggested that he was an ungrateful domineering 

boyfriend." 

We review a district court's admission of allegedly 

prejudicial evidence under Federal Rule of Evidence 403 for abuse 

of discretion, "keeping in mind that '[o]nly rarely and in 

extraordinary compelling circumstances will we, from the vista of 

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

judgement concerning the relative weighing of probative value and 

unfair effect.'" United States v. Soto, 799 F.3d 68, 91 (1st Cir. 

2015) (alteration in original) (quoting United States v. 

Vizcarrondo-Casanova, 763 F.3d 89, 94 (1st Cir. 2014)). Even if 

the district court abused its discretion, we reverse only if the 

"improperly admitted evidence likely affected the outcome of [the]

trial." United States v. Acevedo-Hernández, 898 F.3d 150, 168 

(1st Cir. 2018) (alteration in original) (quoting United States v. 

Torres-Galindo, 206 F.3d 136, 141 (1st Cir. 2000)).

As to Officer Boisselle's statement that there were 

"concerns of noncompliance with the terms of [Lindsey's] 

supervision," there is no basis to conclude that its admission 
- 23 -

affected the outcome of the trial. Boisselle did not claim that 

he suspected Lindsey of violating any particular term of his 

probation relevant to this case. Boisselle also testified that he 

in fact observed several probation violations upon entering the 

apartment, undercutting any argument that mere "concerns of 

noncompliance" would have impacted the outcome of the case. 

Further, the district court did not abuse its discretion 

in admitting the text message from Lindsey's girlfriend. The text 

message was relevant to show Lindsey's ownership of the cellphone 

and the district court reduced any risk of prejudice by instructing 

the jury that "the content of the message is totally irrelevant to 

anything you're deciding, so don't consider it for any other 

purpose other than it's being offered on the limited purpose of 

your considering ownership of the phone." See United States v. 

Moon, 802 F.3d 135, 144-45 (1st Cir. 2015) (explaining that 

limiting instructions "minimize[] the risk of prejudice").

IV. Conclusion

Affirmed.

-Concurring Opinion Follows-
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KAYATTA, Circuit Judge, concurring. I write separately 

only to express my continued reservations about ongoing reliance 

on our holding in United States v. Manning, 79 F.3d 212, 217 (1st 

Cir. 1996), that evidence of prior drug distribution is admissible 

to prove the element of intent in a later drug distribution case. 

See United States v. Henry, 848 F.3d 1, 15 (1st Cir. 2017) 

(Kayatta, J., concurring) ("[T]he admission of evidence of a prior 

conviction to establish the 'intent' of the defendant in connection 

with the offense being tried can become indistinguishable from the 

admission of evidence of a prior conviction to prove a propensity 

to commit that type of crime."). 

The lure of the propensity argument is admittedly 

seductive. But propensity is "not rejected because character is

irrelevant; on the contrary, it is said to weigh too much with the 

jury and to so overpersuade them as to prejudge one with a bad 

general record and deny him a fair opportunity to defend against 

a particular charge." Michelson v. United States, 335 U.S. 469, 

475–76 (1948) (footnote omitted). And because "[a]lmost any bad 

act evidence simultaneously condemns by besmirching character and 

by showing one or more of motive, opportunity, [or] intent, . . . 

not to mention the other purposes of which this list is meant to 

be illustrative," the "list of exceptions in Rule 404(b), if 

applied mechanically, would overwhelm the central principle." 

United States v. Hall, 858 F.3d 254, 269 (4th Cir. 2017) (emphasis 
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in original) (quoting United States v. Miller, 673 F.3d 688, 696-

97 (7th Cir. 2012)). 

The opinion for the court in this case claims to 

distinguish the "impermissible propensity" inference (that 

"because Lindsey had previously sold drugs, he must have had an 

intent to sell drugs in April 2018") from a supposedly permissible 

inference (that because "Lindsey was presently in the business of 

selling drugs," it was "more likely that he intended to sell [the] 

drugs" with which he was found). I fail to see the relevant 

difference, at least as pertains to sales made months and weeks 

prior to the charged sale. With either formulation, the path of 

reasoning runs through propensity: His prior sales evidence a 

propensity making it more likely that he was planning to sell drugs 

on this occasion. See United States v. Davis, 726 F.3d 434, 442 

(3d Cir. 2013) ("[T]he government must explain how [the evidence] 

fits into a chain of inferences -- a chain that connects the 

evidence to a proper purpose, no link of which is a forbidden 

propensity inference.") 

Nevertheless, for two reasons I agree that the admission 

of the text messages does not call for upsetting the conviction: 

First, the text messages exchanged with London on the day of the 

arrest were properly admissible because they show London and 

Lindsey arranging the intended sale that is the subject of this 

case. They thus present no "uncharged conduct" issue. Second, 
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that evidence and the other evidence seized at the scene of the 

arrest make it overwhelmingly clear that Lindsey possessed the 

seized drugs with the intent to sell them. Therefore, any error 

in admitting evidence of other uncharged sales was harmless. And 

I otherwise agree with my colleagues' cogent disposition of the 

other issues on appeal.