United States Court of Appeals 

For the First Circuit 

No. 15-2487 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

CHRISTOPHER HENRY, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Denise J. Casper, U.S. District Judge] 

Before 

Thompson and Kayatta, Circuit Judges, 

and Barbadoro,* District Judge. 

Christine DeMaso, Assistant Federal Public Defender, with 

whom the Federal Defender Office was on brief, for Appellant. 

Vijay Shanker, Attorney, United States Department of Justice, 

Criminal Division, Appellate Section, with whom Leslie R. 

Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy 

Assistant Attorney General, Carmen M. Ortiz, United States 

Attorney, Glenn A. Mackinlay, Assistant United States Attorney, 

and John Albert Wortmann, Jr., Assistant United States Attorney, 

were on brief, for Appellee. 

January 18, 2017 

 * Of the District of New Hampshire, sitting by designation. 
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BARBADORO, District Judge. Christopher Henry was 

convicted after a trial of possession of crack cocaine with intent 

to distribute. He claims on appeal that the district court 

erroneously failed to suppress text messages the police obtained 

from his cell phone pursuant to a search warrant. He also faults 

the district court for admitting evidence of his prior drug 

conviction, allowing a police officer to provide inadmissible 

expert testimony, and failing to instruct the jury on the lesser 

included offense of simple possession. We affirm. 

I. BACKGROUND 

A. The Crimes 

May 29, 2014, was the three-year anniversary of the death 

of a Boston-area gang member, and the police were informed that 

his family would be holding a memorial gathering at their home 

that night. Concerned that the event might spark violence, two 

police officers were dispatched to patrol the neighborhood in a 

car that was unmarked but that could be identified as a police 

vehicle based on its make, model, and accessories. As the officers 

drove toward the address where the gathering was expected, they 

saw two men standing on the sidewalk. When they drove past, one 

of the men, later identified as Henry, appeared shocked. 

Suspicious, the officers stopped and reversed toward the men. Upon 

seeing the car reverse, Henry and the other man took off running. 
- 3 - 

The officers gave chase, one by foot and one by car. 

Henry momentarily eluded the officer on foot by jumping over a 

fence and running through a schoolyard marked with "no trespassing" 

signs. The officer then glimpsed Henry running into the yard of 

a nearby home. He followed Henry into the yard and saw him facing 

another fence, topped with barbed wire. The officer identified 

himself, ordered Henry to the ground, frisked him, and arrested 

him for trespassing. A gun was subsequently found in the driveway 

of the home on the other side of the fence from where Henry was 

arrested. 

The second man, later identified as Dwayne LeastonBrown, ran around the side of the school building and disappeared 

from view. He was eventually found sitting on the steps of the 

same home where the gun was found. A second gun, bearing LeastonBrown's fingerprints, was discovered next to the school building 

along the path he followed as he fled from the police. 

Henry was taken to the police station following his 

arrest where he was booked and thoroughly searched. A search of 

his pants produced a cell phone and $830 in cash, denominated 

mostly in $20 bills. Underneath his pants, Henry was wearing a 

pair of basketball shorts. A search of the shorts produced 21 

individually packaged rocks of crack cocaine and two loose rocks, 

amounting to approximately three grams. 
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The police later applied for and received a warrant to 

search Henry's cell phone. The search yielded coded text messages 

that appeared to reference drug sales. Henry was ultimately 

indicted for possession of crack cocaine with intent to distribute 

based on the cocaine the police found during the search at the 

police station, and possession of a firearm by a convicted felon 

based on the gun the police discovered in the driveway of the home 

across the fence from where he was arrested. 

B. Proceedings Below 

Henry moved to suppress the text messages obtained from 

the cell phone search on the ground that the search warrant 

application failed to establish probable cause. In rejecting 

Henry's motion, the district court relied on the quantity and 

packaging of the drugs and the large amount of cash Henry was 

carrying, the discovery of the gun nearby, and the fact that Henry 

was carrying the cell phone at the time of his arrest. The court 

also gave weight to the affiant's training and experience, which 

led him to conclude that cell phones are critical tools of the 

modern drug trade. Alternatively, the court determined that the 

text messages should not be suppressed even if the search was not 

supported by probable cause because the police relied in good faith 

on the search warrant when they conducted the search. 

The government filed a motion in limine prior to trial 

asking the court to admit evidence of Henry's 2012 state court 
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conviction for possession of crack cocaine with intent to 

distribute. Henry challenged the government's motion by arguing 

that evidence of his past criminal conduct was inadmissible 

propensity evidence that should be excluded under Rules 404(b) and 

403 of the Federal Rules of Evidence. In rejecting Henry's 

arguments, the district court concluded that Henry's prior 

criminal conduct was admissible under Rule 404(b) to prove intent 

and modus operandi. The court also refused to exclude the prior 

conviction evidence pursuant to Rule 403 because its probative 

value was not substantially outweighed by the danger of unfair 

prejudice. When the prior conviction evidence was later admitted 

at trial, the court instructed the jury that it could consider the 

evidence to the extent that it was relevant in proving intent or 

modus operandi, but the fact that Henry may have committed a prior 

crime did not prove that he committed either of the charged crimes. 

The court also rejected Henry's effort at trial to block 

the government from offering certain expert testimony by a police 

officer. The officer testified that he had experience 

investigating drug trafficking as a member of the Drug Control 

Unit of the Boston Police Department, where he had participated in 

over 100 drug buys, listened to wiretapped conversations, and 

instructed other officers on drug trade practices. During the 

trial, he testified that texts on Henry's cell phone containing 

terminology such as "flav," "dub," "hard," "plays," "bus[t]ing a 
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move," and "7 to a 14 lg" referred to drug transactions. These 

opinions were inadmissible, Henry argued, because they were 

speculative or within the ken of the average juror. The officer 

also opined that, "looking at everything, the large amount of 

money, looking at the booking sheet without any employment, 

apparently, the large amount of drugs, the way that they're 

packaged, all similar in size and packaging, . . . putting it all 

together, in [his] opinion, these drugs were packaged for sale." 

Henry claimed that this opinion should be excluded pursuant to 

Rule 704(b) of the Federal Rules of Evidence as an impermissible 

opinion on intent. 

Henry's primary theory of defense was that the officers 

lied in claiming that they had found drugs on him during the 

search. He also sent mixed signals as to whether he planned to 

challenge the government's contention that he possessed the drugs 

with an intent to distribute. Prior to trial, he informed the 

court that he would be contesting possession but not intent. He 

stated in his opening statement that "[i]t may very well be that 

the packaging and the amount of cocaine in those bags was intended 

for distribution, but what you're going to learn is that Henry 

didn't possess it." He also submitted a proposed jury instruction 

prior to trial, however, that asked the court to instruct the jury 

on the lesser included offense of simple possession. 
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The day before closing arguments, Henry renewed his 

request for a simple possession instruction. Although the judge 

agreed to consider the issue further, she told Henry that he should 

assume that she would not give his proposed instruction. The next 

morning, the judge informed counsel that she had looked into case 

law and determined that it would not be rational for a jury to 

find simple possession. On that basis, she told counsel that she 

would not give a lesser included instruction. She also stated, 

"Counsel, your objection as to that is noted for the record." 

Before bringing in the jury, the judge again stated, "I'm not going 

to give the lesser included instruction, and I addressed that on 

the record." 

The jury instructions were split into two parts: the 

jury was given preliminary instructions, each party gave its 

closing argument, and then the jury was given the remaining 

instructions, which did not include a charge on simple possession. 

Following this last set of instructions, the judge met with counsel 

at sidebar. The government stated that it did not object to the 

charge, and Henry's counsel declared that there was "[n]othing 

from . . . the defense." 

The jury convicted Henry of the drug charge, but 

acquitted him of the firearm charge. This appeal followed. 

 
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II. ANALYSIS 

 Henry challenges his conviction by claiming that (1) the 

warrant authorizing the search of his cell phone was not supported 

by probable cause; (2) the court erred in admitting evidence of 

his prior drug conviction; (3) a police expert was permitted to 

offer inadmissible opinion testimony; and (4) Henry was entitled 

to a jury instruction on the lesser included offense of simple 

possession. We address each argument in turn. 

A. The Search of Henry's Cell Phone 

 Henry first challenges the denial of his motion to 

suppress the evidence obtained from his cell phone. Although his 

opening brief argues that the warrant to search his cell phone was 

not supported by probable cause, it inexplicably fails to address 

the district court's alternative basis for denying the suppression 

motion: that, even if probable cause was lacking, the good-faith 

exception to the exclusionary rule applied. See United States v. 

Leon, 468 U.S. 897, 920–23 (1984). By failing to address the goodfaith exception in his opening brief, Henry waived any argument 

that it is inapplicable in his case. See United States v. Casey, 

825 F.3d 1, 12 (1st Cir. 2016) ("[A]rguments raised for the first 

time in an appellate reply brief [are] ordinarily deemed waived. 

. . ."); United States v. Stevens, 380 F.3d 1021, 1024–25 (7th 

Cir. 2004) (concluding that defendant waived argument that goodfaith exception did not apply where defendant's opening brief 
- 9 - 

argued that affidavit in search warrant application failed to 

establish probable cause but "failed to attack the court's 

alternative holding that the evidence seized was admissible under 

the good-faith exception to the exclusionary rule"); see also 

United States v. Fox, 363 F. App'x 375, 376-77 (6th Cir. 2010) 

(unpublished) (same). 

 Henry concedes that his failure to address the goodfaith exception in his opening brief waived that argument, but 

implores us to excuse his waiver. We decline to do so. No 

extraordinary circumstance explains Henry's failure to address 

this issue. Instead, this is a garden-variety failure to raise an 

argument in an opening brief, and excusing Henry's failure in these 

circumstances would turn our venerable raise-or-waive rule into a 

toothless tiger. 

 Henry's failure to preserve for our review any challenge 

to the district court's alternative basis for denying the motion 

to suppress leaves us no choice but to affirm. See Fox, 363 F. 

App'x at 377 ("Since the district court's ruling on the good faith 

exception sufficed to justify its denial of Fox's motion to 

suppress, Fox's failure to appeal that aspect of the court's 

decision means the denial of the motion still stands."); cf. 

Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29–30 

(1st Cir. 2015) (explaining that "[o]ur precedent is clear: we do 

not consider arguments for reversing a decision of a district court 
- 10 - 

when the argument is not raised in a party's opening brief" and 

applying that rule where "the opening brief present[ed] no argument 

at all challenging [the] express grounds upon which the district 

court prominently relied in entering judgment"). Because we affirm 

the denial of the motion to suppress solely on the basis of Henry's 

waiver, we need not — and therefore do not — express any opinion 

on whether the warrant was supported by probable cause or whether 

the good-faith exception applies in this case. 

B. Henry's Prior Drug Conviction 

A proposal by the government to introduce evidence of a 

defendant's prior criminal conduct is subject to a two-part test. 

See United States v. Hicks, 575 F.3d 130, 142 (1st Cir. 2009). 

"First, a court must ask whether the proffered evidence has a 

'special' relevance, i.e., a non-propensity relevance." Id. Under 

Rule 404(b), "[e]vidence of a crime . . . is not admissible to 

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

occasion the person acted in accordance with the character." Fed. 

R. Evid. 404(b)(1). But such evidence "may be admissible for 

another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident." Fed. R. Evid. 404(b)(2). If prior crime 

evidence has special relevance under Rule 404(b), the court must 

move on to consider whether the evidence should nevertheless be 

excluded under Rule 403. Hicks, 575 F.3d at 142. Rule 403 provides 
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that "[t]he court may exclude relevant evidence if its probative 

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

prejudice." Fed. R. Evid. 403. We review the district court's 

admission of a prior conviction under Rules 404(b) and 403 for an 

abuse of discretion. See United States v. Gemma, 818 F.3d 23, 35 

(1st Cir. 2016). 

Henry claims that his prior drug conviction was relevant 

only to prove that he had a propensity to sell drugs. Thus, he 

argues that the evidence should have been excluded pursuant to 

Rule 404(b). In the alternative, he contends that the court should 

have excluded the evidence pursuant to Rule 403 because its 

prejudicial effect substantially outweighed its probative value. 

We find that the district court did not abuse its discretion in 

admitting the prior conviction. 

Rule 404(b)(2) specifically permits the admission of a 

prior conviction to prove intent, and we have repeatedly upheld 

the admission of prior drug dealing by a defendant to prove a 

present intent to distribute. See, e.g., United States v. Manning, 

79 F.3d 212, 217 (1st Cir. 1996) (finding no abuse of discretion 

because "when charges of drug trafficking are involved, this 

[C]ourt has often upheld the admission of evidence of prior 

narcotics involvement to prove knowledge and intent. . . . The 

evidence that Manning had previously sold cocaine makes it more 

likely . . . that he intended to distribute the two bags of 
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cocaine."); United States v. Nickens, 955 F.2d 112, 124–25 (1st 

Cir. 1992) (collecting cases) ("[T]his circuit has repeatedly held 

that a prior involvement with drugs is admissible to prove 

knowledge and intent. . . . [T]he jury may have [permissibly] 

inferred that persons who have distributed cocaine in California, 

are more likely than those who have not, to want to import cocaine 

from Ecuador."); United States v. Doe, 741 F.3d 217, 230 (1st Cir. 

2013) (citing Manning and noting that prior drug sale "makes it 

more likely" that defendant intended to sell drugs on later 

occasion); see also, e.g., United States v. Robinson, 809 F.3d 

991, 997 (8th Cir. 2016) (noting that prior conviction for drug 

distribution is admissible under Rule 404(b) to show intent to 

commit later charge of conspiracy to distribute drugs); United 

States v. Lee, 573 F.3d 155, 166 (3d Cir. 2009) ("Lee's prior drug 

trafficking conviction was properly admitted as evidence that Lee 

intended to distribute any drugs in his possession."). 

Henry attempts to distinguish these cases by noting that 

his theory of defense centered on possession rather than intent. 

A defendant's failure to argue lack of knowledge or intent, 

however, does not "remove those issues from the case." United 

States v. Pelletier, 666 F.3d 1, 6 (1st Cir. 2011) (quoting United 

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

burden of proving intent remained on the government, even though 

Henry did not aggressively litigate the issue, and Henry's prior 
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conviction had probative value in establishing this element of the 

charged offense. Accordingly, the district court did not abuse 

its discretion in ruling that the prior-conviction evidence 

qualified under the intent exception to Rule 404(b). 

We pause to note that this conclusion is compelled by 

the combination of our deferential standard of review and our 

precedent. The government appears to argue that evidence of a 

prior drug distribution offense is always relevant under Rule 

404(b) to show knowledge and intent in a prosecution for possession 

of a controlled substance with intent to distribute. As the 

concurring opinion explains, this across-the-board position seems 

to overlook that, in many cases, impermissible propensity 

reasoning lurks as one of the links in the logical chain of 

relevance. Although we discern no abuse of discretion in this 

case given our precedent, we encourage district court judges to 

carefully consider the proponent's assertion of why a prior 

conviction has special relevance and examine whether, in the 

particular case-specific circumstances, the proponent is simply 

attempting to disguise propensity evidence by artificially 

affixing it with the label of a permitted Rule 404(b)(2) purpose. 

Unlike Rule 404(b), which focuses exclusively on whether 

prior bad act evidence has "special relevance," Rule 403 requires 

a balancing of probative value and prejudicial effect. When 

assessing the probative value of evidence under Rule 403, a court 
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must consider both whether the evidence has been offered to prove 

an issue that is in genuine dispute, and whether the evidentiary 

point can be made with other evidence that does not present a risk 

of unfair prejudice. See United States v. Ford, 839 F.3d 94, 109–

10 (1st Cir. 2016); United States v. Varoudakis, 233 F.3d 113, 

122–24 (1st Cir. 2000). On the other side of the scale, similarity 

between the defendant's prior criminal conduct and the charged 

offense, which may support a finding of "special relevance" under 

Rule 404(b), increases the risk that the jury will draw an improper 

inference of propensity that unfairly prejudices the defendant's 

case. Varoudakis, 233 F.3d at 123. In cases such as Henry's, 

where a prior drug conviction is offered to prove an intent to 

distribute drugs on a different occasion, the risk that the jury 

will use the conviction to infer criminal propensity is especially 

strong. Courts thus must be alert to this danger when they weigh 

the prejudicial effect of evidence against its probative value. 

In the present case, although Henry did not make the 

absence of an intent to distribute the centerpiece of his defense, 

he did raise the issue by seeking a lesser included offense 

instruction for simple possession. Under these circumstances, the 

government was entitled to marshal all of its evidence on the issue 

of intent, including evidence of Henry's prior criminal 

conviction, in an effort to demonstrate that the evidence on that 

element was sufficient to prevent Henry from obtaining a jury 
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instruction on a reduced charge. Moreover, although the similarity 

between Henry's prior drug conviction and the charged drug crime 

presents a risk that the jury might draw an impermissible inference 

of propensity, the court addressed that risk with a limiting 

instruction. Given this instruction, the sufficiency of which 

Henry did not challenge, we cannot say that the district court 

abused its discretion in rejecting Henry's claim that the 

prejudicial effect of the prior crime evidence substantially 

outweighed its probative value. In short, this is not the rare 

case where we are prepared to second-guess the district court's 

Rule 403 analysis. 

Having determined that the district court properly 

admitted evidence of Henry's past criminal conduct to prove intent, 

we need not determine whether the same evidence could have been 

admitted independently to prove modus operandi. Instead, the real 

issue is whether the district court committed reversible error in 

instructing the jury that evidence that was properly admitted for 

one purpose could also be considered for a different, arguably 

inadmissible, purpose. Errors of this sort are harmless if it is 

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

Hicks, 575 F.3d at 143 (quoting United States v. Roberson, 459 

F.3d 39, 49 (1st Cir. 2006)). 

Here, the record contains ample evidence to support the 

verdict. Moreover, as we have explained, the court permissibly 
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admitted Henry's prior conviction for a different purpose and 

instructed the jury that it could not be used to infer criminal 

propensity. Nothing in the facts or argument at trial pointed to 

a finding of modus operandi as a pathway to a guilty verdict that 

was not far more likely to have been provided by a finding of 

intent. Under these circumstances, if the court erred in 

instructing the jury that it could also consider Henry's prior 

conviction as evidence of modus operandi, the error was harmless. 

Cf. United States v. Levy-Cordero, 67 F.3d 1002, 1011 (1st Cir. 

1995) (erroneous instruction that jury could consider prior bad 

act evidence to show intent or knowledge was harmless where 

evidence was admissible to show consciousness of guilt). 

C. Expert Witness Testimony 

Henry complains that the district court improperly 

admitted expert testimony from a police officer. We review the 

court's rulings on this issue for abuse of discretion. See United 

States v. Jordan, 813 F.3d 442, 445 (1st Cir. 2016), cert. denied, 

136 S. Ct. 2528 (2016); United States v. Schneiderhan, 404 F.3d 

73, 81 (1st Cir. 2005). 

"[W]e have long held that government witnesses with 

experience in drug investigations may explain the drug trade and 

translate coded language for juries, either through lay or, if 

qualified, expert testimony." United States v. Rosado-Pérez, 605 

F.3d 48, 56 (1st Cir. 2010). "This [C]ourt has repeatedly found 
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no abuse of discretion in the admission of . . . expert testimony 

to explain the typical methods of drug dealers." United States v. 

Monell, 801 F.3d 34, 45 (1st Cir. 2015). This is because police 

officers' interpretations of the jargon used within criminal 

circles may "give the jury the benefit of an independent body of 

specialized knowledge." United States v. Albertelli, 687 F.3d 

439, 446 (1st Cir. 2012). Officers may also interpret the slang 

terminology used by drug dealers. United States v. Santiago, 566 

F.3d 65, 69 (1st Cir. 2009). 

 Notwithstanding this formidable body of precedent, Henry 

presents two challenges to the police expert's testimony. First, 

he argues that the court violated Rule 704(b) of the Federal Rules 

of Evidence by allowing the expert to express an opinion as to 

whether Henry possessed the drugs with an intent to distribute. 

Second, he argues that the court should have barred the expert 

from interpreting his text messages because the expert's 

interpretations were either speculative or within the ken of the 

jury. We find no reversible error. 

1. Rule 704(b) Claim 

Rule 704(b) provides that "[i]n a criminal case, an 

expert witness must not state an opinion about whether the 

defendant did or did not have a mental state or condition that 

constitutes an element of the crime charged." Fed. R. Evid. 

704(b). "Those matters are for the trier of fact alone." Id. 
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Here, Henry concedes that the police expert "did not explicitly 

state that he believed that Henry had the intent to distribute 

drugs." Instead, he argues that "the import of" the testimony was 

improper because it implied that Henry acted with culpable intent. 

Henry focuses on the following exchange during direct examination: 

Q. Sir, do you have an opinion based on your training 

and experience considering all of the evidence in this 

particular case and the reports that you read and your 

conversations you've had as to whether it is consistent 

with the [sic] distribution or personal use? 

A. Yes. It's my opinion, looking at everything, the 

large amount of money, looking at the booking sheet 

without any employment, apparently, the large amount of 

drugs, the way that they're packaged, all similar in 

size and packaging, also looking at — you know, putting 

it all together, in my opinion, these drugs were packaged 

for sale. 

According to Henry, the expert's opinion that "these drugs were 

packaged for sale" was impermissible under Rule 704(b) because it 

implies an answer to a question that is reserved exclusively for 

the jury. 

We conclude that the district court did not abuse its 

discretion in admitting the expert's opinion. Rule 704(b) bars a 

witness from characterizing the defendant's intent, but it "does 

not, however, apply to 'predicate facts from which a jury might 

infer such intent.'" United States v. Peña-Santo, 809 F.3d 686, 

694 (1st Cir. 2015) (quoting Schneiderhan, 404 F.3d at 81), 

petition for cert. docketed sub nom. Gil-Martínez v. United States, 

No. 16-6836 (U.S. Nov. 14, 2016). In this case, the expert 
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grounded his opinion that the drugs were packaged for sale on his 

general knowledge of criminal practices and the circumstantial 

evidence bearing on the issue of intent that was produced during 

the trial. He did not attempt to offer any special insight as to 

Henry's actual mental state. Accordingly, the expert's testimony 

is consistent with prior precedent, which recognizes that a 

qualified expert does not violate Rule 704(b) by expressing an 

opinion as to whether predicate facts are consistent with drug 

distribution rather than mere possession. See United States v. 

Valle, 72 F.3d 210, 216 (1st Cir. 1995). Even if the jury 

interpreted the expert's testimony to be responsive to the 

prosecutor's question and not merely to be an opinion about how 

the drugs were packaged, as Henry posits, the phrasing of that 

question was permissible. We have upheld expert testimony that 

certain facts were "consistent with" distribution. See id. 

 2. Text Messages 

As recounted above, our cases make it clear that a 

qualified expert may opine as to the meaning of criminals' coded 

communications. See, e.g., Rosado-Pérez, 605 F.3d at 55–56; 

Albertelli, 687 F.3d at 446; Santiago, 566 F.3d at 69. Henry does 

not ask us to overrule our precedents, nor does he contest the 

officer's qualifications as an expert. Rather, he argues that 

"[t]he messages contain perhaps two words ('hard' and 'flav') that 

could be considered specialized language requiring some 
- 20 - 

explanation." The remaining messages, he contends, "were normal, 

uncoded language that the jurors could read and interpret on their 

own." We find no abuse of discretion. 

First, many of the text messages contain specialized 

language whose meaning an expert might helpfully illuminate. For 

example, the words "flav" and "dub" are jargon inaccessible to 

many jurors. See Santiago, 566 F.3d at 68-69 (interpreting "chef 

it up" as slang for "converting cocaine into crack"). Similarly, 

the use of ordinary words — e.g., "hard," "work," "plays," "7 to 

a 14 lg," and "bus[t]ing a couple moves" — in an idiosyncratic way 

rendered them meaningless to laypersons. The witness shed light 

on contextual meanings for these words, which undoubtedly 

"help[ed] the trier of fact to understand the evidence or to 

determine a fact in issue." See Fed. R. Evid. 702(a). 

Second, the officer's interpretation of other text 

messages that did not contain obscure jargon was nonetheless 

permissible because he drew upon his expertise in explaining the 

relevance of the communications in the drug trade. For example, 

he discussed an exchange in which Henry's interlocutor indicates 

that Henry has several cell phones and asks to borrow one. The 

officer drew upon his extensive experience in explaining the 

significance of this exchange, by noting that dealers often use 

multiple phones, each for a different purpose. Such explanations 
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are based upon his expertise and are helpful to the jury, which 

may be unaware of the inner workings of the drug trade. 

Third, any danger posed by the testimony was 

substantially mitigated by cross-examination and the district 

court's limiting instruction. Once an expert testifies, "[f]rom 

that point forward, the credibility and weight of the expert's 

opinion [is] for the factfinder." Jordan, 813 F.3d at 446. The 

jury's task is to "independently evaluate [his] interpretations," 

and the defendant's task is to "exhaustively cross-examine[] [the 

witness] about possible alternative interpretations." See RosadoPérez, 605 F.3d at 56. Here, Henry sought to undermine the 

witness's testimony by cross-examining him on alternative 

interpretations. For example, Henry effectively cross-examined 

the witness on the meaning of "bus[t]ing a move" by prompting the 

officer to recall the lyrics of a popular song that uses the same 

phrase in a manner unrelated to drug dealing. The danger posed by 

questionable testimony was also mitigated by the district court's 

instruction to the jury that it should weigh the evidence 

independently. See Albertelli, 687 F.3d at 448-49. 

For these reasons, the district court did not commit 

reversible error in allowing the police expert to testify. 

D. Lesser Included Instruction 

Henry faults the district court for failing to instruct 

the jury on the lesser included offense of simple possession. We 
- 22 - 

review a district court's failure to give a properly requested 

jury instruction de novo, but examine an unpreserved request only 

for plain error. United States v. Meadows, 571 F.3d 131, 145–46 

(1st Cir. 2009). Before turning to the merits of Henry's argument, 

we first consider the government's contention that the court's 

failure to instruct the jury on simple possession is subject to 

plain error review because Henry failed to renew his objection 

with the court after the charge was read. 

1. Failure to Properly Object 

Rule 30 of the Federal Rules of Criminal Procedure 

requires a party who objects to the court's failure to give a 

proposed instruction to inform the court of his objection "before 

the jury retires to deliberate." Fed. R. Crim. P. 30(d). The 

text of Rule 30(d) is silent regarding the earliest point at which 

a party may object so as to preserve the issue for appeal, but our 

decisions have ordinarily required the appellant to renew his 

objection after the jury has been charged when the court has given 

the parties that opportunity. See Gemma, 818 F.3d at 38; Meadows, 

571 F.3d at 146; United States v. O'Connor, 28 F.3d 218, 221 (1st 

Cir. 1994). We have also determined that this rule is "binding on 

both the court and attorney and that a statement by the court 

'after the charge that objections made prior to it will be saved 

does not absolve the attorney from following the strictures of the 

rule.'" O’Connor, 28 F.3d at 221 (quoting Poulin, 18 F.3d at 982). 
- 23 - 

 Henry attempts to avoid this precedent by invoking our 

decision in United States v. Kaplan, 832 F.2d 676, 682 (1st Cir. 

1987). Kaplan, however, cannot save Henry from failing to properly 

preserve his objection. Unlike in this case, the defendant in 

Kaplan renewed his request for an instruction following the jury 

charge, but simply did not "repeat the magic word 'objection.'" 

See Kaplan, 832 F.2d at 682. Finding that our precedents did not 

require the strict use of that word, we determined that the 

objection had been preserved. See id. Here, in contrast, Henry 

did not make any attempt to preserve his objection after the charge 

was read. 

Henry also correctly notes that there are circumstances 

where "a court should not require a lawyer 'to persist stubbornly 

when the judge has made it perfectly clear that he does not wish 

to hear what the lawyer has to say.'" United States v. FernándezGaray, 788 F.3d 1, 4 (1st Cir. 2015) (quoting United States v. 

Toribio-Lugo, 376 F.3d 33, 41 (1st Cir. 2004)). Henry, however, 

did not face those circumstances. He cannot plausibly argue that 

he "had no reasonable opportunity" to object. Cf. FernándezGaray, 788 F.3d at 4 (Rule 51 objection preserved where judge 

abruptly cut short defense counsel and forbade him from 

continuing). Immediately following the jury charge, but before 

deliberations, the district court invited counsel to sidebar. The 

prosecution informed the court that it had "no objection" to the 
- 24 - 

instructions, and Henry stated that there was "[n]othing from . . 

. the defense." Henry was required to object here. After being 

invited to sidebar, he would not have "affront[ed] the court or 

prejudice[d] the jury beyond repair" by respectfully renewing his 

objection. See Toribio-Lugo, 376 F.3d at 41 (quoting Douglas v. 

Alabama, 380 U.S. 415, 422 (1965)). 

In the present case, the district court invited the 

parties to approach the bench after it completed its instructions 

in an obvious effort to permit the parties to register their 

objections to the jury charge. Henry did not present any 

objections in response to this invitation. Accordingly, his claim 

that the court erred in failing to instruct the jury on simple 

possession is reviewed only for plain error. See Meadows, 571 

F.3d at 146. 

2. Simple Possession Instruction 

A failure by the district court to give a proposed jury 

instruction will qualify as plain error only if the defendant 

demonstrates that "(1) an error occurred; (2) which was clear or 

obvious; and both (3) affected [his] substantial rights; and (4) 

seriously impaired the fairness, integrity, or public reputation 

of judicial proceedings." Gemma, 818 F.3d at 30 (alteration in 

original) (quoting United States v. Laureano-Pérez, 797 F.3d 45, 

60 (1st Cir. 2015)). "This standard is exceedingly difficult to 

satisfy in jury instruction cases: '[T]he plain error hurdle, high 
- 25 - 

in all events, nowhere looms larger than in the context of alleged 

instructional errors.'" Meadows, 571 F.3d at 145 (quoting United 

States v. González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006)). 

Henry cannot satisfy the plain error test because he is 

unable to show that his substantial rights were affected by the 

court's refusal to instruct on simple possession. To satisfy this 

requirement, a defendant must establish "a reasonable probability 

that, but for [the error claimed], the result of the proceeding 

would have been different." United States v. Rodríguez, 735 F.3d 

1, 11 (1st Cir. 2013) (alteration in original) (quoting United 

States v. Hebshie, 549 F.3d 30, 44 (1st Cir. 2008)). Henry fails 

to present a persuasive argument that the jury might have acquitted 

him of the possession with intent to distribute charge if it had 

been instructed on the lesser included offense of simple possession 

given that: the record contains no affirmative evidence that Henry 

possessed the drugs for personal use; Henry's intent to distribute 

was minimally contested and nearly conceded at trial; the quantity 

of drugs Henry carried was consistent with an intent to distribute; 

Henry was carrying a large amount of cash denominated at the street 

purchase price for crack cocaine; and Henry's text messages 

suggested that he was a dealer of drugs rather than a mere user. 

Accordingly, the district court did not commit plain error in 

refusing to instruct on the lesser included offense of simple 

possession. Cf. United States v. Henson, 945 F.2d 430, 440-41 
- 26 - 

(1st Cir. 1991) (holding that failure to give lesser included 

offense instruction was not "error of sufficient magnitude to 

overcome the 'high hurdle' interposed by the plain error rule" 

where uncontroverted evidence was sufficient to establish 

additional elements of greater offense).1 

III. CONCLUSION 

 For the reasons stated, Christopher Henry's conviction 

and sentence are affirmed. 

- Concurring Opinion Follows - 

 1 The district court enhanced Henry's sentence based on a 

finding by a preponderance of the evidence that he possessed a gun 

during the commission of his drug crime. Henry complains that the 

enhancement violated his constitutional rights under the Fifth and 

Sixth Amendments because it was based on acquitted conduct. We 

decline to consider this argument because, as Henry acknowledges, 

his argument is foreclosed by Supreme Court and First Circuit case 

law. See United States v. Watts, 519 U.S. 148, 149 (1997) (per 

curiam); United States v. Alejandro-Montañez, 778 F.3d 352, 361 

(1st Cir. 2015). 
- 27 - 

KAYATTA, Circuit Judge, with whom THOMPSON, Circuit 

Judge, joins, concurring. Because the court's opinion well 

marshals our controlling precedent in support of its conclusions, 

I join in full. I write separately only to note that the 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 opinion for the court relies on our prior opinion in 

United States v. Manning, 79 F.3d 212, 217 (1st Cir. 1996) to 

approve the admission of a prior drug distribution conviction to 

prove the element of intent in this later drug distribution case. 

There is reason to think, though, that the inference that Manning 

licensed in this case, and in drug cases of this sort, is contrary 

to Federal Rule of Evidence 404(b). See United States v. Miller, 

673 F.3d 688, 699 (7th Cir. 2012) ("How, exactly, does [the 

defendant's] prior drug dealing conviction in 2000 suggest that he 

intended to deal drugs in 2008? When the question is framed this 

way, the answer becomes obvious, even though implicit: 'He 

intended to do it before, ladies and gentlemen, so he must have 

intended to do it again.' That is precisely the forbidden 

propensity inference."); United States v. Turner, 781 F.3d 374, 

390–91 (8th Cir.) (similar), cert. denied, 136 S. Ct. 208 (2015), 
- 28 - 

cert. denied, 136 S. Ct. 280 (2015), and cert. denied, 136 S. Ct. 

493 (2015). 

This case illustrates the manner in which the relevance 

of a prior conviction admitted to prove "intent" under Manning may 

rest on little more than propensity. In its brief, the government 

did not articulate how Henry's prior conviction was relevant to 

whether he intended to distribute the crack cocaine found in his 

pocket on May 29, 2014. At oral argument, the government posited 

that the prior conviction was relevant to Henry's intent because 

the fact that Henry possessed fourteen separately packaged rocks 

of crack cocaine with the intent to distribute them in March 2011 

implies that he intended to distribute the twenty-one separately 

packaged rocks of crack cocaine he possessed in May 2014. This 

reasoning is propensity-based. It requires inferring from Henry's 

prior conviction that he has the following character trait: 

whenever he possesses separately packaged rocks of crack cocaine, 

he intends to distribute them. That is, his propensity is to be 

a seller, rather than a buyer or user. It then requires inferring 

that he acted in accordance with that character trait in May 2014. 

The admission of Henry's prior conviction on this line of 

reasoning, although allowed by Manning, appears to run afoul of 

Rule 404(b)(1), which bars the use of other acts evidence "to prove 

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

the person acted in accordance with the character." 
- 29 - 

For the foregoing reasons, one can make a good argument 

for going en banc in a future case to reconsider our Rule 404(b)(1) 

jurisprudence. I say "future" case because, in this particular 

case, any Rule 404(b) error was harmless given the overwhelming 

evidence of Henry's guilt. 

The main argument for not revisiting Manning at some 

point (assuming one thinks it may be wrong) is that it might not 

be worth the effort, given that in drug cases of this sort, prior 

convictions are often admitted for multiple reasons. For instance, 

in many cases, prior convictions are admitted to show both 

knowledge of the nature of a substance and intent to distribute. 

See, e.g., United States v. Doe, 741 F.3d 217, 230 (1st Cir. 2013); 

United States v. Pelletier, 666 F.3d 1, 6 (1st Cir. 2011); United 

States v. Hicks, 575 F.3d 130, 142 (1st Cir. 2009); United States 

v. Landrau-López, 444 F.3d 19, 24 (1st Cir. 2006); United States 

v. Nickens, 955 F.2d 112, 123-24 (1st Cir. 1992) (collecting 

cases). Commonly, there are chains of inference from a prior 

conviction to knowledge that do not include propensity as a 

necessary link. See, e.g., United States v. Arias-Montoya, 967 

F.2d 708, 710-11 (1st Cir. 1992) (discussing several prior cases 

where prior convictions were admitted on knowledge grounds); 

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

Overruling Manning would nevertheless have three nontrivial effects in cases where the only inferential chains linking 
- 30 - 

a prior conviction to intent to distribute include criminal 

propensity. First, it would mean that juries in these cases would 

not be instructed that they could use prior convictions to infer 

intent. Second, it would mean that the relevance of a prior 

conviction to intent to distribute would contribute not to the 

conviction's probative value under Rule 403, but instead to the 

risk of unfair prejudice. Third, it would allow defendants to 

keep a prior conviction out of a case without having to stipulate 

to intent to distribute. These effects would occur even in cases 

where the prior conviction might be specially relevant on one of 

the other grounds listed in Rule 404(b)(2). 

The third of these effects can be particularly 

significant. Consider, for example, a case in which a prior drug 

sale is relevant to knowledge, which happens not to be an element 

that the defendant desires to challenge. In Ferrer-Cruz, 899 F.2d 

at 139; United States v. Garcia, 983 F.2d 1160, 1175-76 (1st Cir. 

1993); and Pelletier, 666 F.3d at 6, we pointed to the possibility 

that a defendant may remove an issue like knowledge from a case by 

tendering an express disavowal and willingness to accept a 

corresponding limitation on cross-examination and jury 

instruction. While we have never had occasion to accept or reject 
- 31 - 

such an approach directly in construing Rule 404,2 certainly the 

district courts can achieve the same result on their own simply by 

finding that the presence of such a disavowal and instruction shift 

the Rule 403 balance against admission. Manning complicates such 

an approach because it effectively requires a stipulation on intent 

as well in order to eliminate fully the Rule 404(b)(2) toehold for 

admitting the evidence. Of course, even under Manning, trial 

courts have ample room to keep out such evidence under Rule 403 

even in the absence of a stipulation on intent. As this case 

shows, though, sometimes they do not exercise that discretion in 

this manner. 

 2 The Supreme Court has held that a stipulation to felon 

status, when it is an element of a charged crime, does not 

eliminate the relevance of a prior conviction to that element, but 

merely impairs its probative value under Rule 403. See Old Chief 

v. United States, 519 U.S. 172, 179 (1997) ("[The] evidentiary 

relevance [of Old Chief's prior conviction] under Rule 401 [was 

not] affected by the availability of alternative proofs of the 

element to which it went, such as an admission by Old 

Chief . . . ."); id. at 184 ("[W]hat counts as the Rule 403 

'probative value' of an item of evidence, as distinct from its 

Rule 401 'relevance,' may be calculated by comparing evidentiary 

alternatives."). There is room to debate both whether this 

reasoning from Old Chief applies to prior convictions introduced 

for one of the purposes listed in Rule 404(b)(2) and whether its 

holding as to relevance applies to so-called "special relevance" 

under Rule 404(b). Compare United States v. Crowder, 141 F.3d 

1202, 1206-07 (D.C. Cir. 1998) (en banc), with id. at 1212-13 

(Tatel, J., dissenting).