15

‐ 958

‐ cr(L)

United States v. Lyle & Van Praagh

U NITED S TATES C OURT OF A PPEALS

FOR THE S ECOND C IRCUIT

August Term 2016

Argued: January 12, 2017

Final Submission: July 6, 2018

Decided: April 1, 2019

Docket Nos. 15

‐ 958

‐ cr(L), 15

‐ 1175

‐ cr(CON)

U NITED S TATES OF A MERICA

,

Appellee,

v.

J AMES L YLE

, AKA S EALED D EFENDANT 3, M ICHAEL V AN P RAAGH

, AKA S EALED

D EFENDANT 1,

Defendants

‐ Appellants,

A NTHONY T ARANTINO

, AKA S EALED D EFENDANT 2,

Defendant.

O N A PPEAL FROM THE U NITED S TATES D ISTRICT C OURT

FOR THE S OUTHERN D ISTRICT OF N EW Y ORK

Before:

R AGGI

, C HIN

, AND L OHIER

, Circuit Judges

.2 Consolidated appeals from judgments of the United States District

Court for the Southern District of New York (Crotty, J. ) entered after defendants

‐

appellants James Lyle and Michael Van Praagh were convicted at trial of charges

relating to drug trafficking. Lyle challenges the admission of (1) physical

evidence obtained pursuant to warrantless searches and (2) his post

‐ arrest and

proffer statements. Van Praagh challenges (1) the sufficiency of the evidence of

conspiracy, (2) the admission of Lyle ʹ s post

‐ arrest and proffer statements in their

joint trial, and (3) the reasonableness of his sentence.

A FFIRMED

.

MICHAEL FERRARA, Assistant United States

Attorney (Brendan F. Quigley, Assistant

United States Attorney, on the brief ), for

Geoffrey S. Berman, United States Attorney

for the Southern District of New York, New

York, New York, for Appellee

.

DANIEL S. NOOTER (Thomas H. Nooter, on the

brief ), Freeman Nooter & Ginsberg, New

York, New York, for Defendant

‐ Appellant

James Lyle.3 MARSHA R. TAUBENHAUS, Law Offices of

Marsha R. Taubenhaus, New York, New

York, for Defendant

‐ Appellant Michael Van

Praagh.

C HIN

, Circuit Judge :

Defendants

‐ appellants James Lyle and Michael Van Praagh appeal

from judgments of the United States District Court for the Southern District of

New York (Crotty, J. ) convicting them on charges relating to the distribution of

methamphetamine. Lyle challenges the admission at trial of evidence seized

during a December 11, 2013 inventory search of a rental car and a January 9, 2014

search of his hotel room. He also challenges the admission at trial of certain post

‐

arrest and proffer statements. Van Praagh challenges the sufficiency of the

evidence of his participation in a methamphetamine distribution conspiracy, the

admission of Lyle ʹ s post

‐ arrest and proffer statements in their joint trial, and the

reasonableness of his sentence. Because we conclude that the evidence at trial

was sufficient to support all convictions, the challenged searches and seizures

did not violate the Fourth Amendment, the admission of Lyle ʹ s statements did

not violate the Fifth Amendment, and Van Praagh ʹ s sentence was reasonable, we

affirm the judgments of the district court.4 BACKGROUND

I. The Facts

Because Van Praagh and Lyle appeal convictions following a jury

trial, we view the evidence in ʺ the light most favorable to the government,

crediting any inferences that the jury might have drawn in its favor. ʺ United

States v. Rosemond

, 841 F.3d 95, 99

‐ 100 (2d Cir. 2016) (quoting United States v.

Dhinsa

, 243 F.3d 635, 643 (2d Cir. 2001)).

A. Overview

Throughout 2013, Van Praagh regularly sold pound quantities of

methamphetamine. These deals generally occurred once a week and often took

place in Manhattan hotels. Van Praagh also sold smaller quantities of

methamphetamine out of his apartment in Queens and through in

‐ person

deliveries to his customers. Brandon Hodges, an Arizona

‐ based

methamphetamine supplier, sent Van Praagh methamphetamine on three or four

occasions during this time, with the largest shipment containing four ounces of

methamphetamine. Van Praagh regularly sold methamphetamine to Lyle, who

was also a methamphetamine dealer in the New York area. Lyle regularly sold

methamphetamine to Anthony Tarantino. Tarantino initially purchased5 methamphetamine for personal use, but eventually started selling small

quantities of methamphetamine to his own clients. Both Hodges and Tarantino

cooperated with the government and testified at trial.

In January 2013, Lyle introduced Tarantino to Van Praagh.

Tarantino accompanied Lyle to Van Praagh ʹ s apartment so that Lyle could

restock his methamphetamine supply. While at Van Praagh ʹ s apartment,

Tarantino saw Lyle purchase methamphetamine from Van Praagh, which Lyle

later sold to Tarantino. In April 2013, Lyle took Tarantino to Van Praagh ʹ s

apartment a second time, where Tarantino again observed Lyle ʺ re

‐ up, ʺ i.e.

,

purchase methamphetamine, from Van Praagh. After this second visit,

Tarantino and Van Praagh became romantically involved, and eventually

Tarantino moved in with Van Praagh and began helping him sell

methamphetamine.

B. The Seizure of Methamphetamine from Van Praagh ʹ s Hotel Room

On May 29, 2013, Van Praagh and Tarantino checked into the Out

Hotel in midtown Manhattan. That night, they sold pound quantities of

methamphetamine to several customers, including Lyle. The next day, they

checked out of the hotel but accidentally left approximately a pound of6 methamphetamine and $20,000 cash in the hotel room safe. Hotel staff found the

drugs and money and called the New York City Police Department ( ʺ NYPD ʺ ),

and officers arrived to seize the drugs and cash. After Van Praagh realized his

mistake later that day, he returned to the hotel, where he was arrested by the

NYPD. During the arrest, the officers seized a cellular phone and over $1,000

cash from Van Praagh ʹ s pocket. The officers also searched Van Praagh ʹ s Vespa

scooter parked outside the hotel, where they found part of and packaging for a

digital scale.

Soon thereafter, Tarantino brought Lyle money to give to Van

Praagh ʹ s father to bail Van Praagh out of jail. The day after Van Praagh got out

of jail, he and Tarantino flew to Arizona to ensure that Van Praagh ʹ s

methamphetamine suppliers would continue to sell to him. Van Praagh and

Tarantino returned to New York and continued their sale of methamphetamine.

C. Lyle ʹ s Arrests

On December 11, 2013, NYPD officers observed Lyle park and exit a

car in midtown Manhattan. The officers noticed a knife clipped to Lyle ʹ s pants,

which they later determined to be an illegal gravity knife. The officers

approached Lyle as he was closing the trunk of the car. Lyle told the officers that7 he was legally permitted to carry a gravity knife because he was a member of the

stagehands union and used the knife to perform his job. Lyle initially said he

had not driven the car but when the officers informed him that they had seen

him driving it, Lyle admitted as much. When asked for identification, Lyle

produced a New York State ID with the expiration date scratched off. The

officers confirmed that Lyle ʹ s driver ʹ s license was suspended. The officers also

determined that the vehicle Lyle was driving was a rental car and that Lyle was

not an authorized driver under the rental agreement. Lyle claimed that his

girlfriend had rented the car and had given him permission to drive it. The

officers arrested Lyle for driving with a suspended license and for possessing an

illegal knife.

Before heading to the station for processing, Lyle asked if the car

could be left at the location and stated that his girlfriend would pick it up. The

officers denied the request and impounded the vehicle. At the police precinct, an

inventory search was conducted. Over one pound of methamphetamine and

approximately $39,000 cash were found in the trunk of the car.

The following day

‐‐ December 12, 2013

‐‐ Lyle was brought to the

District Attorney ʹ s Office where he made certain statements in custody after8 being read his Miranda rights. When asked about the methamphetamine that

was in the trunk of the rental car, Lyle stated that ʺ an individual

. . . had

contacted him and asked him to hold something for him. ʺ Tr. 435. 1 He stated

that upon meeting with that individual and another individual, he stayed in the

car and did not see what was placed in the trunk but presumed it to be drugs

because the individual that he was meeting with was known to distribute large

quantities of methamphetamine in the New York area. When asked about his

relationship with these two individuals, Lyle stated that he was friends with

them, and had eventually begun working with one of them in delivering

methamphetamine to the individual ʹ s customers.

Lyle stated that the person in charge had a source of supply in

Arizona named either Brendan or Brandon. Lyle also ʺ provided a few names ʺ of

other people in the New York area who distributed large quantities of

methamphetamine. Tr. 436.

On January 9, 2014, police in East Windsor, New Jersey responded

to an anonymous call that people were using methamphetamine in a hotel room.

1 Lyle identified this individual as Van Praagh, but at trial, ʺ individual ʺ

was substituted for Van Praagh ʹ s name pursuant to Bruton v. United States

, 391 U.S. 123

(1968).9 When they got to the hotel room, Lyle opened the door and invited the officers

inside. The officers heard the toilet flush and saw Lyle ʹ s girlfriend come out of

the bathroom. The officers observed a torch lighter on the bathroom shelf, a

small clear bag next to the trash can, and a partial clear straw wrapper containing

white residue on the bathroom floor. Additionally, they observed a towel under

the bathroom doorway. In the bedroom, the officers noticed that a clear bag had

been affixed to the smoke detector with rubber bands.

Officers then performed a consent search of the room, and found

approximately fourteen grams of methamphetamine, $3,270 cash, a digital scale,

and numerous plastic baggies. Lyle and his girlfriend were both arrested.

II. The Proceedings Below

A. The Indictment and Van Praagh ʹ s Arrest

Van Praagh, Lyle, and Tarantino were indicted on March 20, 2014.

On March 31, 2014, Drug Enforcement Administration ( ʺ DEA ʺ ) agents arrested

Van Praagh at his apartment. After receiving consent to search the apartment,

agents found tools used to sell drugs, including a heat

‐ sealer, packaging

materials, and multiple scales, and a note from Hodges asking Van Praagh to

have Lyle call him.10 On April 6, 2013, Van Praagh called his father from jail and told him,

in a recorded call, ʺ they got nothing

. . . . I sterilized the house like I told you. ʺ

Supp. App. 104. He also told him, ʺ [t]hey got Anthony [Tarantino], but I ʹ m

expecting that he ʹ ll be disappearing any day now

. . . . I believe that he had been

talking. ʺ Supp. App. 105.

B. Lyle ʹ s Proffer Session

On April 7, 2014, Lyle participated in a proffer session with the

government in hope of reaching a cooperation agreement. A proffer agreement

was executed, stipulating that the government would not use any of Lyle ʹ s

statements made during the proffer sessions against him, except ʺ to rebut any

evidence or arguments offered by or on behalf of [Lyle]. ʺ Lyle App. 36.

During the proffer session, Lyle admitted that (1) around 2011 or

2012, he sometimes stayed with Van Praagh while working on projects in New

York City; (2) he observed Van Praagh smoking and using methamphetamine;

(3) he occasionally delivered packages to Van Praagh ʹ s clients; (4) he

accompanied Van Praagh to deliver methamphetamine thirty to fifty times;

(5) Van Praagh told Lyle his supplier was in Arizona; and (6) on one occasion,11 Lyle accompanied Van Praagh to pick up methamphetamine from a library in

New York City.

C. The Superseding Indictment and Pretrial Motions

A superseding indictment was filed September 30, 2014, charging

(1) Van Praagh and Lyle with conspiring to distribute 500 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), from

December 2012 to January 2014; (2) Van Praagh with distributing and possessing

with intent to distribute 50 grams or more of methamphetamine, in violation of

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), on or about May 30, 2013; and (3) Lyle

with distributing and possessing with intent to distribute 50 grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), on or

about December 11, 2013.

Before trial, Lyle moved to suppress the physical evidence recovered

from the search of the automobile, as well as his subsequent post

‐ arrest

statements. In an affidavit filed in support of the motion, Lyle admitted that

(1) just prior to his arrest, he had been driving the car that had been rented by his

girlfriend with her permission; (2) he possessed a gravity knife that day; (3) he12 initially told the police officers he had not been driving the car but later admitted

to driving the car; and (4) his license was suspended at the time.

On September 11, 2014, the district court held an evidentiary hearing

on the voluntariness of Lyle ʹ s post

‐ arrest statements and, on October 1, 2014, the

court denied Lyle ʹ s motion to suppress. The court found there was probable

cause for Lyle ʹ s arrest, based on his possession of a gravity knife. The court then

concluded that the search of the rental car was justified on two independent

bases. First, Lyle had no reasonable expectation of privacy in the rental car

because he was not an authorized driver under the rental agreement. Second,

the search of the rental car was a valid inventory search. The court also found

that Lyle ʹ s post

‐ arrest statements were made voluntarily and pursuant to a valid

Miranda waiver.

D. The Trial

Lyle and Van Praagh ʹ s trial began on October 14, 2014, and ended on

October 20, 2014. The government called nineteen witnesses, and introduced

physical evidence consisting of drugs and drug processing materials, text

messages between the defendants, testimony regarding Lyle ʹ s post

‐ arrest and

proffer statements, and the recorded call Van Praagh made to his father while13 incarcerated. Van Praagh called one witness who testified about the

circumstances of Van Praagh ʹ s March 31, 2014 arrest. Lyle did not put on a case.

During his opening statement, Lyle ʹ s counsel stated that ʺ [Lyle]

obtained, bought, borrowed, was given methamphetamine for his own use.

Where we dispute is the idea that he was a dealer. ʺ Tr. 28. Later that day, the

government submitted a letter brief, asserting that Lyle ʹ s counsel ʹ s argument that

Lyle was not a dealer opened the door to Lyle ʹ s proffer statements about

distributing drugs with Van Praagh.

Lyle ʹ s statements to law enforcement were admitted in two contexts.

First, the district court allowed testimony regarding Lyle ʹ s December 12, 2013

post

‐ arrest statements to law enforcement to be admitted only as against him,

prohibiting mention of Van Praagh. Van Praagh did not object to the redacted

testimony. Government witnesses testified that Lyle admitted that an

ʺ individual ʺ for whom he worked as a ʺ runner ʺ ʺ asked him to hold something for

him ʺ in the trunk of the rental car, which Lyle ʺ presumed

. . . to be drugs ʺ

because Lyle knew ʺ [t]hat individual along with another individual ʺ distributed

ʺ large quantities of crystal meth in the New York area. ʺ Tr. 435, 534. Lyle was

friends ʺ [m]ore so with the individual that had not placed the drugs in the14 trunk.

. . . He said that he began as friends, and eventually he began working

with that individual ʺ ‐‐ the ʺ individual who was in charge ʺ‐‐ ʺ assisting him in

delivering

. . . methamphetamine to that individual ʹ s customers. ʺ Tr. 435

‐ 36.

Lyle told law enforcement that the individuals for whom he was working as a

runner had a source of supply in Arizona named either Brendan or Brandon.

Lyle also gave law enforcement ʺ a few names ʺ of other people in the New York

area who distributed methamphetamine, including the names of three

competitor drug dealers. Tr. 436. On cross

‐ examination, Lyle ʹ s attorney elicited

testimony that, during the post

‐ arrest interview, Lyle ʺ gave names of people

during the conversation, ʺ one of which was Brandon or Brendan. Tr. 448.

Second, toward the close of the government ʹ s case, the district court

ruled

‐‐ over Lyle ʹ s objection

‐‐ that Lyle ʹ s proffer statements were admissible,

but again prohibited mention of Van Praagh. Van Praagh did not object. The

government witness then testified that Lyle admitted he had ʺ first become

involved in methamphetamine ʺ in 2012 through ʺ someone ʺ he ʺ knew

. . . from

work. ʺ Tr. 517

‐ 18. Lyle observed ʺ that person

. . . using and distributing crystal

methamphetamine. ʺ Tr. 518. Lyle ʺ began distributing small packages ʺ for that

person and ʺ accompanying that person on deals as well as picking up crystal15 methamphetamine. ʺ Id. Lyle admitted that ʺ he accompanied this person

. . . [on]

between 30 to 50 occasions. And that at one point they had gone to a library in

the New York City area

. . . to pick up crystal methamphetamine. ʺ Id. Lyle said

the methamphetamine supplier was in Arizona.

On cross

‐ examination, Lyle ʹ s attorney elicited from the witness that

ʺ [Lyle] actually g[a]ve real names of people ʺ during his proffer session, and

provided ʺ some names of people whose last names he didn ʹ t know. ʺ Tr. 524.

These names included ʺ Zaron, ʺ ʺ Ted, ʺ ʺ Bob, ʺ and ʺ Joe. ʺ Tr. at 525.

At the close of trial, the district court instructed the jury, in pertinent

part: ʺ There has been evidence that Mr. Lyle made statements to law

enforcement authorities

. . . . I want to let you know that

. . . Mr. Lyle ʹ s statement

about his own conduct may not be considered or discussed by you with regard

to Mr. Van Praagh. ʺ Tr. 713.

On October 20, 2014, the jury found the defendants guilty on all

counts. On March 25, 2015, the district court sentenced Lyle principally to the

statutory mandatory minimum of 120 months ʹ imprisonment and, on April 2,

2015, the district court sentenced Van Praagh principally to 144 months ʹ

imprisonment. In imposing a higher sentence on Van Praagh, the district court16 concluded that ʺ Van Praagh had a higher role, more important role. He dealt in

more drugs than did Mr. Lyle. ʺ Van Praagh App. 62.

These appeals followed. On May 9, 2017, we issued an opinion

affirming the district court ʹ s judgments. United States v. Lyle

, 856 F.3d 191 (2d

Cir. 2017). Lyle petitioned for and was granted certiorari by the Supreme Court.

On May 21, 2018, the Supreme Court vacated the judgment and remanded the

case for further consideration in light of its intervening decision in Byrd v. United

States

, ‐‐‐ U.S.

‐‐‐ , 138 S. Ct. 1518 (2018), which addressed the issue of the

reasonable expectation of privacy of an unauthorized driver of a rental car. On

July 6, 2018, the parties submitted letter briefs addressing Byrd ʹ s impact upon this

case. For the reasons set forth below, we adhere to our original decision.

DISCUSSION

Six issues are presented: (1) the validity of the warrantless search

and seizure of the rental car; (2) the interpretation of Lyle ʹ s proffer agreement; (3)

the sufficiency of the redactions to Lyle ʹ s proffer statements; (4) the admissibility

of Lyle ʹ s New Jersey arrest; (5) the sufficiency of the conspiracy evidence against

Van Praagh; and (6) the reasonableness of Van Praagh ʹ s sentence. We address

each issue in turn.17 I. Warrantless Search of Rental Car

We review a district court ʹ s ruling on a suppression motion for clear

error as to factual findings, ʺ giving special deference to findings that are based

on determinations of witness credibility, ʺ and de novo as to questions of law.

United States v. Hussain

, 835 F.3d 307, 312

‐ 13 (2d Cir. 2016) (quoting United States

v. Lucky

, 569 F.3d 101, 106 (2d Cir. 2009)). We conclude that Lyle ʹ s motion was

properly denied for two independent reasons: first, Lyle had no reasonable

expectation of privacy in the rental car, and, second, the inventory search of the

rental car was reasonable.

A. Applicable Law

i. Reasonable Expectation of Privacy in Rental Car

The Fourth Amendment guarantees citizens the ʺ right

. . . to be

secure in their

. . . effects, against unreasonable searches and seizures. ʺ U.S.

Const. amend. IV. To prove that a search violated the Fourth Amendment, ʺ an

accused must show that he had a legitimate expectation of privacy in a searched

place or item. ʺ United States v. Rahme

, 813 F.2d 31, 34 (2d Cir. 1987) (citing

Rawlings v. Kentucky

, 448 U.S. 98, 104 (1980)). The person challenging the search

must demonstrate a subjective expectation of privacy in the place searched, and18 that expectation must be objectively reasonable. United States v. Paulino

, 850 F.2d

93, 97 (2d Cir. 1988).

When we previously ruled in this case, the question of whether an

unauthorized driver has a reasonable expectation of privacy in a rental car

divided the various circuit courts, resulting in at least three approaches. See Lyle

,

856 F.3d at 200

‐ 01 (reviewing circuit split). We did not rule on the question, as

we decided the appeal on other grounds, as discussed below.

The Supreme Court ʹ s recent decision in Byrd v. United States resolved

the circuit split, holding that the ʺ mere fact that a driver in lawful possession or

control of a rental car is not listed on the rental agreement will not defeat his or

her otherwise reasonable expectation of privacy. ʺ 138 S. Ct. at 1531. The Court

rejected the government ʹ s suggestion of a per se rule that unauthorized drivers

ʺ always lack an expectation of privacy in the automobile based on the rental

company ʹ s lack of authorization alone. ʺ Id. at 1527. Drawing from property

principles, the Supreme Court reasoned that ʺ [o]ne of the main rights attaching

to property is the right to exclude others, and, in the main, one who owns or

lawfully possesses or controls property will in all likelihood have a legitimate

expectation of privacy by virtue of the right to exclude. ʺ Id. at 1527 (quoting19 Rakas v. Illinois

, 439 U.S. 128, 144 n. 12 (1978) (internal quotation marks omitted)).

It further noted, however, that the concept of lawful possession is central to the

expectation of privacy inquiry, for a ʺʹ wrongful ʹ presence at the scene of a search

would not enable a defendant to object to the legality of the search. ʺ Id. at 1529

(quoting Rakas

, 439 U.S. at 141 n. 9). Thus, ʺ a person present in a stolen

automobile at the time of the search may [not] object to the lawfulness of the

search of the automobile ʺ regardless of his level of possession and control over

the automobile. See id

.

ii. Community Caretaking Function

It is well established that police have the authority, despite the

absence of a warrant, to seize and remove from the streets automobiles in the

interests of public safety and as part of their community caretaking functions

‐‐

an authority that is beyond reasonable challenge. South Dakota v. Opperman

, 428

U.S. 364, 368

‐ 69 (1976). In Colorado v. Bertine

, the Supreme Court explained that,

under this community caretaking exception to the warrant requirement, police

officers may exercise their discretion in deciding whether to impound a vehicle,

ʺ so long as that discretion is exercised according to standard criteria and on the

basis of something other than suspicion of evidence of criminal activity. ʺ 47920 U.S. 367, 375 (1987). The question of whether Bertine and similar Supreme Court

precedent require an officer ʹ s decision to impound a car to be made pursuant to

standardized criteria, a question we have not addressed, has created a split

among the circuits.

Relying on a stricter interpretation of Bertine

, two circuits have

concluded that an officer ʹ s decision to impound a vehicle as part of its role as a

community caretaker must be guided by a standardized procedure. See United

States v. Petty

, 367 F.3d 1009, 1012 (8th Cir. 2004) (holding that ʺ [s]ome degree of

standardized criteria or established routine must regulate these police actions

. . .

to ensure that impoundments and inventory searches are not merely a ruse for

general rummaging in order to discover incriminating evidence ʺ (internal

quotation marks omitted)); United States v. Duguay

, 93 F.3d 346, 351 (7th Cir.

1996) ( ʺ Among those criteria which must be standardized are the circumstances

in which a car may be impounded. ʺ ). Taking a slightly different approach, the

D.C. Circuit has held that ʺ if a standard impoundment procedure exists, a police

officer ʹ s failure to adhere thereto is unreasonable and violates the Fourth

Amendment. ʺ United States v. Proctor

, 489 F.3d 1348, 1354 (D.C. Cir. 2007). The

Tenth Circuit has held that standardized procedures are not required where an21 officer exercises ʺ the community

‐ caretaking functions of protecting public safety

and promoting the efficient movement of traffic, ʺ but are required in other cases.

United States v. Sanders

, 796 F.3d 1241, 1245 (10th Cir. 2015).

The First, Third, and Fifth Circuits, however, have rejected the

standardized criteria requirement, and instead focus their inquiry on the

reasonableness of the impoundment under the circumstances. See United States v.

McKinnon

, 681 F.3d 203, 208 (5th Cir. 2012) (per curiam) (hinging analysis upon

ʺ the reasonableness of the ʹ community caretaker ʹ impound viewed in the context

of the facts and circumstances encountered by the officer ʺ (citation omitted));

United States v. Smith

, 522 F.3d 305, 314 (3d Cir. 2008) (declining to adopt ʺ the

more structured approach

. . . requiring that there be standardized police

procedures governing impoundments ʺ ); United States v. Coccia

, 446 F.3d 233, 239

(1st Cir. 2006) ( ʺ [I]mpoundments of vehicles for community caretaking purposes

are consonant with the Fourth Amendment so long as the impoundment decision

was reasonable under the circumstances. ʺ ). These circuits read Bertine ʺ to

indicate that an impoundment decision made pursuant to standardized

procedures will most likely, although not necessarily always, satisfy the Fourth

Amendment. ʺ Coccia

, 446 F.3d at 238.22 B. Application

i. Reasonable Expectation of Privacy in Rental Car

In our prior decision, we specifically declined to decide whether an

unauthorized driver ever has a reasonable expectation of privacy in a rental car.

Instead, we concluded, and now reaffirm, that Lyle lacked standing not just

because he was an unauthorized driver, but because he was an unlicensed one.

Accordingly, Lyle ʹ s use of the rental car was both unauthorized and unlawful.

See N.Y. Vehicle & Traffic Law § 511 (prohibiting operating a car without a valid

license). Lyle should not have been driving any car because his license was

suspended, and a rental company with knowledge of the relevant facts certainly

would not have given him permission to drive its car nor allowed a renter to let

him do so. Under these circumstances, Lyle did not have a reasonable

expectation of privacy in the rental car. See United States v. Haywood

, 324 F.3d

514, 516 (7th Cir. 2003) (declining to resolve circuit split over whether

unauthorized driver had reasonable expectation of privacy in rental car, because

unauthorized driver also had suspended license and the combination resulted in

no reasonable expectation of privacy); cf. United States v. Tropiano

, 50 F.3d 157,

161 (2d Cir. 1995) ( ʺ [W]e think it obvious that a defendant who knowingly23 possesses a stolen car has no legitimate expectation of privacy in the car. ʺ ); United

States v. Ponce

, 947 F.2d 646, 649 (2d Cir. 1991) ( ʺ To mount a challenge to a search

of a vehicle, defendants must show, among other things, a legitimate basis for

being in it, such as permission from the owner. ʺ ).

Byrd does not require a different result. The Court there held that an

unauthorized driver in sole possession of a rental car could have a legitimate

expectation of privacy in the vehicle because even an unauthorized driver, in the

right circumstances, could have ʺ lawful possession and control and the attendant

right to exclude. ʺ 138 S. Ct. at 1528. The Court noted that ʺ there may be

countless innocuous reasons why an unauthorized driver might get behind the

wheel of a rental car and drive it

‐‐ perhaps the renter is drowsy or inebriated. ʺ

Id. at 1529.

This reasoning does not apply to the circumstances here, where Lyle

was not only the driver of the vehicle but the sole occupant. Because Lyle did

not have a valid driver ʹ s license, it was unlawful for him to be operating the

vehicle. He did not have lawful possession and control of the vehicle in the sense

that he unlawfully drove the vehicle onto the scene and could not lawfully drive

it away. See id. (reaffirming conclusion in Rakas v. Illinois that ʺʹ wrongful ʹ24 presence at the scene of a search would not enable a defendant to object to the

legality of the search, ʺ ʺ [n]o matter the degree of [a defendant ʹ s] possession and

control. ʺ )

. While the absence of a valid license alone may not destroy an

unauthorized driver ʹ s expectation of privacy, Lyle ʹ s possession and control of the

car was unlawful the moment he started driving it. Just as a car thief would not

have a reasonable expectation of privacy in a stolen car, id.

, an unauthorized,

unlicensed driver in sole possession of a rental car does not have a reasonable

expectation of privacy in the vehicle. Therefore, because Lyle ʹ s operation of the

car rendered his possession and control unlawful, Byrd is distinguishable.

Further, unlike the Eighth and Ninth Circuits, which have held that

a defendant may have standing to challenge a search of a rental car despite

lacking a valid license and authorization under the rental agreement if he

received an authorized driver ʹ s permission, United States v. Best

, 135 F.3d 1223

(8th Cir. 1998); United States v. Thomas

, 447 F.3d 1191 (9th Cir. 2006), we conclude

that an authorized renter ʹ s permission is not determinative of whether a

defendant has a reasonable expectation of privacy. Indeed, Byrd explicitly

rejected the notion that legitimate presence alone affords a defendant with a

reasonable expectation of privacy. 138 S. Ct. at 1527 (quoting Rakas

, 439 U.S. at25 148 (noting that legitimate presence is relevant, but not controlling)). While a

defendant does not lose all his Fourth Amendment rights simply by engaging in

illegal acts, he may still lack standing to challenge a search when the law

prevents him from being there in the first place, even with the owner ʹ s

permission. See United States v. Schram

, 901 F.3d 1042, 1045 (9th Cir. 2018)

(rejecting argument that defendant had standing to object to the search of his

girlfriend ʹ s house because the no

‐ contact order prohibiting him from contacting

his girlfriend was vitiated by her consent to enter the property). Here, even

assuming that, under different circumstances, an unlicensed driver may have an

expectation of privacy in a rental car, Lyle ʹ s possession and control was unlawful

while driving the rental car both without a license and without authorization. Cf.

United States v. Walton

, 763 F.3d 655, 663 (7th Cir. 2014) (holding that defendant,

who was passenger at time of search and sole authorized driver listed on rental

agreement, had reasonable expectation of privacy in rental car despite lacking

driver ʹ s license because ʺ [a] driver of a car does not lose all Fourth Amendment

protections simply because his license is invalid, ʺ but observing that conclusion

would not obtain if person were both unlicensed and unauthorized).26 Lyle argues that he was not operating the vehicle when he was

arrested and that he lawfully possessed the vehicle. These arguments ignore the

fact that Lyle was seen by the agents driving the vehicle, and, indeed, he

eventually admitted as much. Because he was driving the vehicle illegally, Lyle

did not have lawful possession or control of the vehicle and he does not have

standing to challenge the search.

Lyle ʹ s reliance on the Sixth Circuit ʹ s decision in United States v.

Smith

, 263 F.3d 571, 586 (6th Cir. 2001), is misplaced. Smith presented unique

facts. Specifically, Smith was not only the husband of the renter, but he also ʺ had

a business relationship with the rental company ʺ because he had ʺ called the

rental company to reserve the rental vehicle, ʺ ʺ was given a reservation number, ʺ

and ʺ provided the company with his credit card number, and that credit card

was subsequently billed for the rental of the vehicle. ʺ Id. In light of these facts,

the Sixth Circuit determined that ʺ Smith was the de facto renter of the vehicle ʺ

and that, therefore, he had a legitimate expectation of privacy in the rental car.

Id. at 586

‐ 87. Lyle was not the de facto renter of the car at issue here. Moreover,

the Sixth Circuit also noted that Smith was a licensed driver. Id. at 586 ( ʺ Smith27 was a licensed driver

. . . . Therefore, it was not illegal for Smith [to] drive the

vehicle. ʺ ). For these reasons, Smith is distinguishable.

Accordingly, we adhere to our original conclusion that Lyle lacked a

reasonable expectation of privacy in the rental car, and the district court did not

err in denying his motion to suppress.

ii. Impoundment of Rental Car

Even assuming Lyle had a legitimate privacy interest in the rental

car, his challenge to the inventory search fails on the merits as the impoundment

of the rental car did not violate the Fourth Amendment. 2 The Supreme Court has

repeatedly held that the touchstone of the Fourth Amendment is reasonableness,

see United States v. Ramirez

, 523 U.S. 65, 71 (1998), which ʺ in turn, is measured in

objective terms by examining the totality of the circumstances, ʺ Ohio v. Robinette

,

519 U.S. 33, 39 (1996). Thus, in line with the First, Third, and Fifth Circuits, we

conclude that ʺ whether a decision to impound is reasonable under the Fourth

2 Some courts have concluded that there are two inquiries: first, whether

the impoundment of a car is reasonable; and second, if so, whether the subsequent

search of the car after the impoundment is reasonable. See, e.g., Duguay

, 93 F.3d at 351

( ʺ [T]he decision to impound (the ʹ seizure ʹ ) is properly analyzed as distinct from the

decision to inventory (the ʹ search ʹ ). ʺ ); Coccia

, 446 F.3d at 237 n. 5 (same). Here, Lyle has

challenged only the impoundment and not the subsequent search of the rental vehicle

. Hence, we need not reach the second inquiry.28 Amendment is based on all the facts and circumstances of a given case. ʺ Coccia

,

446 F.3d at 239. While the existence of and an officer ʹ s adherence to a

standardized criteria may be helpful in evaluating the reasonableness of an

impoundment, we decline to adopt a standardized impoundment procedure

requirement.

Using a totality of the circumstances analysis, we conclude that the

impoundment here was reasonable under the Fourth Amendment even absent

standardized procedures. Here, at the time of his arrest for driving with a

suspended license and for possessing an illegal knife, Lyle was the rental car ʹ s

driver and sole occupant. As there was no third party immediately available to

entrust with the vehicle ʹ s safekeeping, the officers could not be certain how long

the rental car would be unattended in Lyle ʹ s absence. Even if Lyle did not expect

to be in custody long, Lyle would not have been able to operate the car himself

upon release due to his suspended license. Although Lyle asked for the

opportunity to arrange for his girlfriend, the authorized driver under the rental

agreement, to remove the rental car, the police were not required to grant the

request. See Bertine

, 479 U.S. at 374

‐ 75; see also Duguay

, 93 F.3d at 353 & n. 2

(holding impoundment of car unconstitutional when the vehicle ʹ s other occupant29 was present at the arrest and could ʺ provide for the speedy and efficient removal

of the car from public thoroughfares, ʺ but noting that the Seventh Circuit has

affirmed impoundments where the arrestee is the vehicle ʹ s sole occupant and is

legitimately arrested). Instead, by impounding the vehicle, the officer ensured

that the rental vehicle was not left on a public street in a busy midtown

Manhattan location where it could have become a nuisance or been stolen or

damaged and could have become illegally parked the next day. See Opperman

,

428 U.S. at 368

‐ 69 (describing as ʺ beyond challenge ʺ the authority of police ʺ to

seize and remove from the streets vehicles impeding traffic or threatening public

safety and convenience, ʺ such as vehicles that ʺ violate parking ordinances ʺ );

Sanders

, 796 F.3d at 1249 ( ʺ Opperman establishes that if a vehicle is obstructing or

impeding traffic on public property, it can be impounded regardless of whether

the impoundment is guided by standardized procedures. ʺ ). Moreover, there is

no indication that the officers did not act in good faith or solely for the purpose

of investigation in exercising their discretion to impound the rental car.

Our decision in United States v. Lopez

, 547 F.3d 364 (2d Cir. 2008), is

instructive. There, although our discussion primarily concerned the

constitutionality of the inventory search itself, we concluded that the30 circumstances called for the impoundment of Lopez ʹ s car despite any showing of

a standardized impoundment policy. Id. at 372. Similar to Lyle, Lopez was

arrested and there was no one immediately available to move his car for

safekeeping in Lopez ʹ s case because the only other passenger was also arrested.

See id

. at 366

‐ 67. Moreover, like Lyle ʹ s car, Lopez ʹ s car was parked on a city

street. Id. at 366.

Thus, even if Lyle had a reasonable expectation of privacy in the

rental car, the district court did not err in denying his motion to suppress.

II. The Pro ff er Agreement Waiver

We review the district court ʹ s interpretation of the scope of a proffer

agreement waiver de novo and its evidentiary rulings for abuse of discretion.

Rosemond

, 841 F.3d at 107.

A. Applicable Law

Ordinarily, a ʺ statement made during plea discussions with an

attorney for the prosecuting authority ʺ that does not result in a guilty plea is not

admissible against the defendant who made the statement. Fed. R. Evid.

410(a)(4). The protections provided by Rule 410, however, can be waived,

including in a proffer agreement with the government, provided that such31 waiver is knowing and voluntary. Rosemond

, 841 F.3d at 107; United States v.

Velez

, 354 F.3d 190, 194

‐ 95 (2d Cir. 2004).

To determine whether a proffer agreement ʹ s waiver provision

applies, we ask first whether the defendant has offered any evidence or made a

factual assertion that would trigger the Rule 410 waiver, and, ʺ if so, whether the

proffer statement ʹ fairly rebut[s] ʹ the fact asserted or evidence offered or elicited. ʺ

Rosemond

, 841 F.3d at 107. If the waiver has been triggered and the proffer

statement properly rebuts the assertion triggering the waiver, the government

may offer the proffer statement. Id.

In Rosemond

, we gave examples of factual assertions that will trigger

the proffer waiver, including ʺ asserting, in an opening statement, that someone

other than the defendant was the real perpetrator of the crime, ʺ id. at 109 (citing

United States v. Barrow

, 400 F.3d 109, 114, 119 (2d Cir. 2005)), and ʺ arguing that a

shooting was ʹ an intended kidnapping gone wrong, ʹ when the defendant

admitted in a proffer session that the shooting was ʹ an intentional murder, ʹʺ id. at

110 (quoting United States v. Gomez

, 210 F. Supp. 2d 465, 472 (S.D.N.Y. 2002)).

B. Application

The district court properly held that the waiver was triggered by

Lyle ʹ s counsel ʹ s statement during opening argument that ʺ we dispute [] the idea32 that [Lyle] was a dealer. ʺ Tr. 28. Lyle ʹ s proffer agreement contained a waiver

that allowed his statements to come in ʺ to rebut any evidence or arguments

offered by or on behalf of [Lyle]. ʺ Lyle App. 36.

As this Court has recognized, a defense argument does not trigger a

waiver if it ʺ simply challenge[s] the sufficiency of government proof on [the]

elements. ʺ Barrow

, 400 F.3d at 119. But ʺ a statement of fact in a defense opening,

such as [a] statement

. . . unequivocally identifying [someone other than

defendant] as the real perpetrator of the charged crimes, ʺ is a factual assertion

that would trigger a waiver provision. Id. Here, defense counsel did not ascribe

the charged crime to someone else, but he did more than challenge the

sufficiency of the government ʹ s proof. Rather than argue that the government

would not adduce credible evidence that Lyle was a drug dealer, counsel

disputed the very idea that Lyle was a dealer. This is the functional equivalent of

an affirmative statement that Lyle, in fact, did not deal methamphetamine. This

assertion was belied by Lyle ʹ s proffer admissions and, thus, triggered the waiver

provision in the proffer agreement.

Lyle ʹ s proffer statements fairly rebut his counsel ʹ s opening argument

that Lyle was not a dealer. The proffer statements at issue included that (1) Lyle33 repeatedly distributed ʺ small packages ʺ of methamphetamine; (2) Lyle

accompanied another person to obtain and deliver methamphetamine; and

(3) Lyle knew the location of the methamphetamine supplier. Taken together,

these statements imply participation in a drug distribution operation and thus

fairly rebut Lyle ʹ s counsel ʹ s argument in his opening statement that Lyle was a

mere user of methamphetamine and not a dealer. See Barrow

, 400 F.3d at 120

‐ 21

(emphasizing that ʺ proper rebuttal is not limited to direct contradiction ʺ but

ʺ encompasses any evidence that the trial judge concludes fairly counters and

casts doubt on the truthfulness of factual assertions advanced, whether directly

or implicitly, by an adversary ʺ ).

Hence, we conclude that the district court did not abuse its

discretion in admitting Lyle ʹ s proffer statements.

III. The Admission of Lyle ʹ s Redacted Statements

A. Applicable Law

In Bruton v. United States

, 391 U.S. 123, 135

‐ 36 (1968), the Supreme

Court held that admission of a non

‐ testifying co

‐ defendant ʹ s confession naming

the defendant as a perpetrator at their joint trial violates the latter ʹ s Sixth

Amendment right to cross

‐ examination. The Court later made clear that a non

‐34 obvious redaction of a co

‐ defendant ʹ s confession to eliminate any references to

the defendant will eliminate any Bruton problem. See Gray v. Maryland

, 523 U.S.

185, 195

‐ 97 (1998); Richardson v. Marsh

, 481 U.S. 200, 208

‐ 09 (1987).

We have consistently held that the introduction of a co

‐ defendant ʹ s

confession with the defendant ʹ s name replaced by a neutral noun or pronoun

does not violate Bruton

. See, e.g.

, United States v. Jass

, 569 F.3d 47, 58 (2d Cir.

2009) (noting that operative questions when evaluating Bruton claim are ʺ (1) did

the redacted statement give any indication to the jury that the original statement

contained actual names, and (2) did the statement standing alone otherwise

connect co

‐ defendants to the crimes ʺ (internal quotation marks and ellipsis

omitted)). In United States v. Tutino

, 883 F.2d 1125 (2d Cir. 1989), for example, we

affirmed a conviction based in part on a co

‐ defendant ʹ s statement that was

redacted to reference ʺ others, ʺ ʺ other people, ʺ and ʺ another person. ʺ Id. at 1135.

To determine whether a redaction is sufficient under Bruton

, we

view the redacted statement separate and apart from any other evidence

admitted at trial. Id. (citing United States v. Wilkinson

, 754 F.2d 1427, 1435 (2d Cir.

1985)); see also United States v. Williams

, 936 F.2d 698, 700

‐ 01 (2d Cir. 1991) ( ʺ [T]he

appropriate analysis to be used when applying the Bruton rule requires that we35 view the redacted confession in isolation from the other evidence introduced at

trial. If the confession, when so viewed, does not incriminate the defendant, then

it may be admitted with a proper limiting instruction even though other

evidence in the case indicates that the neutral pronoun is in fact a reference to the

defendant. ʺ ).

B. Application

Van Praagh contends that his constitutional rights were violated by

the admission of Lyle ʹ s redacted proffer and post

‐ arrest statements. We

ordinarily review evidentiary rulings for abuse of discretion; however, Van

Praagh did not object to the introduction of the redacted statements at trial, and

so we review the admission of this evidence for plain error. See United States v.

Pierce

, 785 F.3d 832, 840 (2d Cir.), cert. denied

, 136 S. Ct. 172 (2015). 3

The redacted statements did not violate Bruton

. The neutral terms

ʺ individual ʺ and ʺ person, ʺ which were substituted for proper names with the

3 Van Praagh contends that his Bruton argument was preserved by his

counsel ʹ s objection to the admission of Lyle ʹ s unredacted statements and by Lyle ʹ s

counsel ʹ s objection to the redacted statements. Admission of unredacted statements,

however, is a different and independent issue, and Van Praagh cites no authority

suggesting that one party ʹ s counsel may preserve another party ʹ s claim of error when

the other party ʹ s counsel fails timely to join in the objection. Accordingly, plain error

review applies.36 exception of that of a supplier ‐‐ ʺ Brendan or Brandon, ʺ Tr. 436, 534

‐‐ were not so

obvious as to indicate to the jury that the original statements contained actual

names. This was an ongoing criminal enterprise where many people were

involved and the government introduced evidence of methamphetamine dealing

by several people. Thus, the substitutions alone did not necessarily identify Van

Praagh. Further, Lyle ʹ s redacted statements sounded sufficiently natural. For

instance, he admitted that he had ʺ first become involved in methamphetamine ʺ

through ʺ someone ʺ he ʺ knew

. . . from work, ʺ Tr. 517

‐ 18, and that the individual

for whom he worked as a ʺ runner ʺ ʺ asked him to hold something for him ʺ in the

trunk of the rental car. Tr. 435, 534. Because such statements ʺ might actually

have been said by a person admitting his own culpability in the charged

conspiracy while shielding the specific identity of his confederate, ʺ they do not

violate Bruton

. Jass

, 569 F.3d at 62. Nor did the redacted statements, viewed in

isolation, contain any information indicating that Van Praagh was the

ʺ individual ʺ in question, let alone information that would ʺ immediately

inculpate ʺ him. Id. at 61 (internal quotation marks omitted).

Van Praagh relies on United States v. Taylor

, 745 F.3d 15 (2d Cir.

2014), to support his contention that the redactions violated Bruton

, but Taylor is37 distinguishable. Taylor involved a single robbery of a drug store by four people.

Id. at 20

‐ 21. One of the four, Luana Miller, became a cooperating witness, and

another, Curtis Taylor, gave post

‐ arrest confessions. Id. At the trial of Taylor

and the two other co

‐ defendants, the trial court admitted Taylor ʹ s post

‐ arrest

confessions but required their redaction to omit identifications of his two co

‐

defendants. In the portions of the confessions that were admitted, Miller ʹ s name

was mentioned but the names of the two co

‐ defendants were replaced with ʺ two

other individuals, ʺ ʺ the person, ʺ and ʺ the driver. ʺ Id. at 29. We determined that

in this circumstance the redactions were so obvious as to violate Bruton

. Our

reasoning was as follows. First, Miller ʹ s name was used throughout and, ʺ [i]f

Taylor had been trying to avoid naming his confederates, he would not have

identified one of them

‐‐ Miller

‐‐ in the very phrase in which the names of the

other confederates are omitted. ʺ Id. Second, the wording of the redacted

statements, i.e.

, ʺ [t]he robbery was the idea of the person who waited with Luana

Miller and Taylor at the gas station, ʺ was stilted and unnatural. Id. Third, in this

context, the ʺ reference to ʹ two other individuals ʹ [was] suspiciously closer to the

speech of a prosecutor than that of a perpetrator. ʺ Id. On the basis of these

factors, we determined that it was obvious that names had been omitted from the38 statements and, therefore, ʺ the choice of implied identity [was] narrow. The

unnamed persons correspond[ed] by number (two) and by role to the pair of co

‐

defendants

. . . [and] [t]he jury could immediately infer, on the evidence of the

redacted confession alone, that Taylor had likely named the co

‐ defendants. ʺ Id.

This case is unlike Taylor

. First, Lyle ʹ s statements referred to multiple

people

‐‐ not only one unnamed person to correspond to the one co

‐ defendant,

Van Praagh. This did not present the necessary process

‐ of

‐ elimination problem

that left the jury ʹ s ʺ choice of implied identity narrow ʺ as in Taylor

. Id. Second, in

addition to Van Praagh ʹ s methamphetamine dealing, the government introduced

evidence of methamphetamine dealing by its two cooperating witnesses

‐‐

Tarantino and Hodges

‐‐ as well as several others. Because Lyle ʹ s statements did

not reference by name those cooperating witnesses, the jury could reasonably

have inferred that they were the ʺ other persons ʺ Lyle was referring to in his

redacted statements. Third, Lyle ʹ s statements referred to people involved in a

conspiracy to engage in ongoing criminal conduct, not a single criminal act like in

Taylor

. For all of these reasons, Taylor is inapposite.

We also note that the district court here gave a limiting instruction.

See Taylor

, 745 F.3d at 28 ( ʺ It matters that the district court gave limiting39 instructions ʺ because ʺ [w]e normally assume that jurors follow limiting

instructions ʺ ). The district court specifically instructed the jury that ʺ Lyle ʹ s

statement about his own conduct may not be considered or discussed by you

with regard to Mr. Van Praagh. ʺ Tr. 713.

Finally, Van Praagh ʹ s constitutional rights were not violated by

Lyle ʹ s counsel eliciting testimony on cross

‐ examination that his client ʹ s

statements had been redacted for presentation at trial and that his client had

indeed provided actual names in his proffer and post

‐ arrest statements. Again,

because Van Praagh did not object during Lyle ʹ s attorney ʹ s cross

‐ examination,

we review for plain error. In urging error, Van Praagh relies on Gray v.

Maryland

, 523 U.S. 185 (holding that ʺ considered as a class, redactions that

. . .

notify the jury that a name has been deleted ʺ violated the Confrontation Clause).

But Gray ʹ s focus was on the inadequacy of the government ʹ s redaction. Van

Praagh can point to no case plainly identifying Bruton error when a defendant,

whose post

‐ arrest statements are being offered against him, elicits the fact of

redaction, or elicits parts of the redacted statement.

Van Praagh fails to show plain error here. First, his case is

distinguishable from Gray in that there the redaction inadequacy was attributable40 to the prosecution. In any event, Van Praagh cannot satisfy the prejudice prong

of plain error because in his case the redacted statements referred to multiple

ʺ individuals, ʺ which means the revelation could not have been immediately

inculpatory. See Jass

, 569 F.3d at 61.

Further, during cross

‐ examination, Lyle ʹ s attorney elicited from the

same witness several of the names that Lyle mentioned during his post

‐ arrest

and proffer statements, including ʺ Zaron, ʺ ʺ Ted, ʺ ʺ Bob, ʺ and ʺ Joe. ʺ Tr. 525. In

our view, that testimony made it less

, not more, obvious to the jury that Lyle had

also mentioned Van Praagh. Van Praagh ʹ s name was not mentioned at all, and

Lyle ʹ s counsel ʹ s elicitation of other names suggested that the ʺ other persons ʺ

mentioned were the individuals whose names Lyle ʹ s counsel elicited, not Van

Praagh. For all of these reasons, the admission of Lyle ʹ s redacted statements was

not plainly erroneous.

IV. Admissibility of Lyle ʹ s New Jersey Arrest

We review a district court ʹ s evidentiary rulings for abuse of

discretion, which we will find only if the district court ʺ acted arbitrarily and

irrationally. ʺ United States v. Greer

, 631 F.3d 608, 614 (2d Cir. 2011) (quoting

United States v. Garcia

, 291 F.3d 127, 136 (2d Cir. 2002)).41 A. Applicable Law

Federal Rule of Evidence 404(b) provides:

Evidence of a crime, wrong, or other act is not admissible to prove a

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

person acted in accordance with the character.

Fed. R. Evid. 404(b). ʺ The Second Circuit ʹ s ʹ inclusionary rule ʹ allows the

admission of such evidence ʹ for any purpose other than to show a defendant ʹ s

criminal propensity, as long as the evidence is relevant and satisfies the

probative

‐ prejudice balancing test of Rule 403 of the Federal Rules of Evidence. ʹʺ

Greer

, 631 F.3d at 614 (quoting United States v. Inserra

, 34 F.3d 83, 89 (2d Cir.

1994)).

Not all evidence of uncharged misconduct, however, is prohibited

by Rule 404(b). Rather,

[E]vidence of uncharged criminal activity is not considered other

crimes evidence

. . . if it arose out of the same transaction or series of

transactions as the charged offense, if it is inextricably intertwined

with the evidence regarding the charged offense, or if it is necessary

to complete the story of the crime on trial.

United States v. Carboni

, 204 F.3d 39, 44 (2d Cir. 2000) (internal quotation marks

omitted); see also Inserra

, 34 F.3d at 89 ( ʺ [E]vidence of other bad acts may be42 admitted to provide the jury with the complete story of the crimes charged by

demonstrating the context of certain events relevant to the charged offense. ʺ ).

B. Application

The district court did not abuse its discretion in admitting the

evidence seized during the New Jersey arrest in January 2014. First, that

evidence was not barred by Rule 404(b) because the arrest ʺ arose out of the same

transaction or series of transactions as the charged offense. ʺ Carboni

, 204 F.3d at

44. Specifically, as discussed above, Lyle argued at trial that he was only a

methamphetamine user ‐‐ not a dealer. The government rebutted that argument

with evidence of Lyle ʹ s New Jersey arrest. In summation, the government

argued:

14 or 15 grams [of methamphetamine] is still many hundreds, if not

thousands, of dollars of meth.

. . . Also, you know what else was in

that room? A dozen baggies, a scale, $3,000 in cash. He was not

weighing out meth for his own personal use. That was meth he was

going to sell.

Tr. 629. In other words, the evidence seized pursuant to the New Jersey arrest

was not evidence of other crimes; it was evidence of the very crime charged in

count one of the indictment, a conspiracy involving Lyle, Van Praagh, and others

to distribute methamphetamine from in or about December 2012 through in or43 about January 2014. Accordingly, evidence of the New Jersey arrest was

admissible as direct proof of the methamphetamine distribution conspiracy.

Second, and in any event, the evidence of the New Jersey arrest fits

within the Rule 404(b) inclusionary rule because it shows Lyle ʹ s knowledge and

intent regarding the contents of the rental car. Because Lyle argued throughout

trial that he did not know what was in the trunk of the rental car, his knowledge

and intent were at issue. United States v. Ramirez

, 894 F.2d 565, 568 (2d Cir. 1990)

( ʺ When the defendant disavows awareness that a crime was being perpetrated,

and the government bears the burden of proving the defendant ʹ s knowing

possession as an element of the crime, knowledge is properly put in issue. ʺ ). The

fact that Lyle was in possession of 14

‐ 15 grams of methamphetamine and tools of

the drug trade less than a month after he was arrested with the rental car is

probative of his knowledge and intent regarding the contents of the rental car. In

addition, the probative value of this evidence was not ʺ substantially outweighed ʺ

by the risk of unfair prejudice as it ʺ did not involve conduct any more

sensational or disturbing than the crimes with which [Lyle was] charged. ʺ United

States v. Pitre

, 960 F.2d 1112, 1120 (2d Cir. 1992) (quoting United States v. Roldan

‐

Zapata

, 916 F.2d 795, 804 (2d Cir. 1990)). Accordingly, the district court acted44 well within its discretion in finding that the probative value of the evidence

outweighed the threat of unfair prejudice.

V. Su ffi ciency of the Conspiracy Evidence

We review Van Praagh ʹ s challenge to whether the evidence was

sufficient to support his conspiracy conviction de novo

, ʺ view[ing] the evidence in

the light most favorable to the government, crediting every inference that could

have been drawn in the government ʹ s favor, and deferring to the jury ʹ s

assessment of witness credibility and its assessment of the weight of the

evidence. ʺ Rosemond

, 841 F.3d at 113 (quoting United States v. Coplan

, 703 F.3d 46,

62 (2d Cir. 2012)). We must affirm if ʺ any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. ʺ Id. (quoting

United States v. Vernace

, 811 F.3d 609, 615 (2d Cir. 2016)).

The crux of a conspiracy is an agreement between two or more

persons to join together to accomplish something illegal. United States v. Parker

,

554 F.3d 230, 234 (2d Cir. 2009) ( ʺ To prove a conspiracy, the evidence must show

that ʹ two or more persons agreed to participate in a joint venture intended to

commit an unlawful act. ʹʺ (quoting United States v. Desimone

, 119 F.3d 217, 223

(2d Cir. 1997))). We have recognized a ʺ narrow exception ʺ to the conspiracy rule45 for a transaction between a buyer and seller of drugs. Id. Under this exception,

ʺ the existence of a buyer

‐ seller relationship does not itself establish a conspiracy;

however, where there is additional evidence showing an agreement to join

together to accomplish an objective beyond the sale transaction, the evidence

may support a finding that the parties intentionally participated in a conspiracy. ʺ

United States v. Hawkins

, 547 F.3d 66, 72 (2d Cir. 2008); see also United States v.

Rojas

, 617 F.3d 669, 674 (2d Cir. 2010) ( ʺ [T]he exception does not protect either the

seller or buyer from a charge that they conspired together to transfer drugs if the

evidence supports a finding that they shared a conspiratorial purpose to advance

other transfers, whether by the seller or by the buyer. ʺ (alteration and internal

quotation marks omitted)). The question thus becomes ʺ whether the evidence in

its totality suffices to permit a jury to find beyond a reasonable doubt that the

defendant was not merely a buyer or seller of narcotics, but rather that the

defendant knowingly and intentionally participated in the narcotics

‐ distribution

conspiracy by agreeing to accomplish its illegal objective beyond the mere

purchase or sale. ʺ Hawkins

, 547 F.3d at 73

‐ 74.

Van Praagh did not request a buyer

‐ seller instruction at trial and so

we review for plain error. Pierce

, 785 F.3d at 840. The district court did not46 plainly err in failing to give a buyer

‐ seller instruction because the government

presented ample evidence of a narcotics conspiracy beyond a buyer

‐ seller

relationship between Van Praagh and Lyle.

First, Van Praagh sold methamphetamine not just to Lyle, but to

others. Indeed, he received weekly shipments of methamphetamine, which he

then sold to others. With assistance from Tarantino, he regularly sold

methamphetamine out of his apartment in Queens as well as out of hotels, and

he made deliveries to ʺ [p]robably 50 ʺ customers. Tr. 124.

Second, the quantity of drugs was consistent with a drug trafficking

operation. Tarantino testified that Lyle repeatedly purchased pound

‐ level

quantities of methamphetamine at $19,000 to $25,000 per pound. See United

States v. Contreras

, 249 F.3d 595, 600 (7th Cir. 2001) (noting that repeat sales

suggest ʺ more than a transient relationship, ʺ but are ʺ by themselves ʺ insufficient

to support an inference of a conspiracy between the supplier and purchaser); see

also United States v. Murray

, 618 F.2d 892, 902 (2d Cir. 1980) ( ʺ [O]ne who deals in

large quantities of narcotics may be presumed to know that he is a part of a

venture which extends beyond his individual participation. ʺ (quoting United

States v. Magnano

, 543 F.2d 431, 433

‐ 34 (2d Cir. 1976)).47 Accordingly, the district court did not plainly err in failing to sua

sponte give a buyer

‐ seller instruction. See United States v. Medina

, 944 F.2d 60, 65

‐

66 (2d Cir. 1991) (holding that the district court was not required to give a buyer

‐

seller instruction ʺ where

. . . there is advanced planning among the alleged co

‐

conspirators to deal in wholesale quantities of drugs obviously not intended for

personal use ʺ because ʺ [u]nder such circumstances, the participants in the

transaction may be presumed to know that they are part of a broader

conspiracy ʺ ).

VI. Reasonableness of Van Praagh ʹ s Sentence

We review the substantive reasonableness of a sentence under a

ʺ deferential abuse

‐ of

‐ discretion standard. ʺ United States v. Aldeen

, 792 F.3d 247,

251 (2d Cir. 2015) (quoting Gall v. United States

, 552 U.S. 38, 41 (2007)). The

question is whether Van Praagh ʹ s below

‐ Guidelines sentence of 144 months ʹ

imprisonment ʺ shock[s] the conscience, ʺ constitutes a ʺ manifest injustice, ʺ or is

otherwise substantively unreasonable. Id. at 255 (quoting United States v. Rigas

,

583 F.3d 108, 123 (2d Cir. 2009)); see also United States v. Perez

‐ Frias

, 636 F.3d 39, 43

(2d Cir. 2011) (per curiam) ( ʺ [I]n the overwhelming majority of cases, a

Guidelines sentence will fall comfortably within the broad range of sentences

that would be reasonable in the particular circumstances. It is therefore difficult48 to find that a below

‐ Guidelines sentence is unreasonable. ʺ (internal quotation

marks and citation omitted)).

Van Praagh ʹ s below

‐ Guidelines sentence of 144 months was

substantively reasonable. The district court fully explained its reasoning. It

considered Van Praagh ʹ s ʺ very unhappy upbringing, ʺ and the ʺ very positive

change ʺ that Van Praagh ʺ seem[ed] to be undergoing. ʺ Van Praagh App. 58

‐ 59.

The district court determined, however, that a 144

‐ month sentence was sufficient

but not greater than necessary because Van Praagh (1) had committed a ʺ very

serious ʺ crime; (2) had a ʺ long history of drug dealing ʺ and ʺ plenty of

opportunities to change ʺ ; (3) clearly had been ʺ in charge of dealing more drugs at

a higher level than [Lyle] ʺ ; and (4) had a ʺ prior record suggest[ing] that he still

continues to be a danger to the community. ʺ Id.

Van Praagh ʹ s argument that, like Lyle, he should have been

sentenced to the statutory mandatory minimum of 120 months ʹ imprisonment is

unavailing. As the district court noted, Van Praagh had a ʺ more important role ʺ

than Lyle. See Van Praagh App. 62. Van Praagh supplied Lyle with pound

quantities of methamphetamine on multiple occasions. Van Praagh had people

working for him to make drug deliveries. Moreover, Van Praagh ʹ s criminal49 history was clearly more serious than Lyle ʹ s. Although neither man had

previously served any jail time for his crimes, Van Praagh ʹ s previous convictions

included crimes relating to methamphetamine, while Lyle had only a violation

for marijuana possession twenty years prior to the instant offense conduct. In

these circumstances, we identify no abuse of the district court ʹ s sentencing

discretion and no merit in Van Praagh ʹ s claim that his sentence is substantively

unreasonable.

CONCLUSION

To summarize, we conclude as follows:

1. Because Lyle was an unlicensed, as well as unauthorized,

driver of the rental car, he had no reasonable expectation of privacy in that car,

and the district court did not err in denying his motion to suppress. Even

assuming Lyle had a legitimate privacy interest, the search and seizure of the

rental car did not violate the Fourth Amendment.

2. Lyle ʹ s counsel ʹ s statement in his opening argument that ʺ we

dispute [] the idea that [Lyle] was a dealer, ʺ Tr. 28, triggered the waiver in Lyle ʹ s

proffer agreement, and the proffer statements, taken together, fairly rebutted his50 counsel ʹ s argument that Lyle was a mere user of methamphetamine and not a

dealer.

3. The admission of Lyle ʹ s redacted proffer and post

‐ arrest

statements in the defendants ʹ joint trial was not plainly erroneous because the

statements substituted neutral terms for actual names and had no otherwise

identifying information. Further, the district court did not plainly err in allowing

Lyle ʹ s counsel, without Van Praagh ʹ s objection, to elicit testimony that Lyle ʹ s

statements had been redacted, that Lyle had provided actual names in his proffer

and post

‐ arrest statements, and what several of those names were because those

disclosures did not prejudice Van Praagh and, indeed, made it less obvious to the

jury that Lyle was referring to Van Praagh in his statements.

4. The district court did not abuse its discretion in admitting the

evidence seized during Lyle ʹ s New Jersey arrest because (a) it was direct

evidence of the conspiracy charged in count one of the superseding indictment,

and (b) even if it was not direct evidence, it was not ʺ other crimes evidence ʺ

prohibited by Federal Rule of Evidence 404(b) because it showed Lyle ʹ s

knowledge and intent regarding the contents of the rental car on December 11,

2013.51 5. The district court did not plainly err in failing to sua sponte

give a buyer

‐ seller instruction to the jury because the government presented

ample evidence of a narcotics conspiracy.

6. Van Praagh ʹ s below

‐ Guidelines sentence of 144 months ʹ

imprisonment was substantively reasonable.

Accordingly, the judgments of the district court are AFFIRMED

.