United States v. Willis, et al 1 1 In the

18-3617-cr (L)
United States v. Willis, et al
1
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
5
August Term, 2020 6
7
Nos. 18-3617-cr, 19-1051-cr 8
9
UNITED STATES OF AMERICA, 10
11
Appellee, 12
13
v. 14
15
LARRY WILLIS, ISIAH PIERCE 16
17
Defendants-Appellants. 18
_______________________________ 19
20
Appeal from the United States District Court 21
for the Western District of New York 22
No. 17-cr-32 (LJV), Lawrence J. Vilardo, District Judge, Presiding. 23
(Argued: December 7, 2020; Decided: September 20, 2021) 24
25
Before: 26
POOLER, PARKER, and LYNCH, Circuit Judges. 27
28
Defendants-Appellants Larry Willis and Isiah Pierce appeal from 29
judgments entered by the United States District Court for the Western District of 30
New York (Lawrence J. Vilardo, J.) following their convictions on multiple drug- 31
and gun-related counts. Willis and Pierce contend that there was insufficient 32
evidence to support their convictions and raise various issues relating to the 33

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conduct of their trials and sentences. We conclude that sufficient evidence 1
supported their convictions, and we see no errors that would require a new trial. 2
Accordingly, we AFFIRM the judgments. However, because the district court 3
failed to rule whether Willis’s sentence would run concurrently to an 4
undischarged state sentence, we REMAND his sentence for resentencing and 5
clarification on this issue. 6
7
A FFIRMED IN PART, V ACATED IN PART, A ND R EMANDED 8
____________________________ 9
10
K ATHERINE A. G REGORY , Assistant United States 11
Attorney for James P. Kennedy, Jr., United States 12
Attorney for the Western District of New York, 13
Buffalo, N.Y., 14
for Appellee. 15
16
C ARLA M. S ANDERSON 17
Carla Sanderson Law, 18
New York, N.Y., 19
for Defendant-Appellant Willis. 20
21
R OBERT A. C ULP 22
Garrison, N.Y., 23
for Defendant-Appellant Pierce. 24
______________________________ 25
B ARRINGTON D. PARKER , Circuit Judge: 26
Larry Willis and Isiah Pierce appeal from judgments of conviction entered 27
following a three-day trial in the United States District Court for the Western 28
District of New York (Vilardo, J.). The defendants, charged in a twelve-count 29
superseding indictment, were convicted of various drug-related crimes and 30

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firearms offenses.1 The district court denied defendants’ motions for judgments 1
of acquittal. See Fed. R. Crim. P. 29. Pierce was sentenced to 168 months and 2
Willis to 210 months of incarceration. 3
On appeal, defendants contend that the evidence was insufficient to 4
support the jury’s verdict on each of the counts of conviction. They also challenge 5
various of the district court’s evidentiary rulings and its calculation of the 6
sentences recommended by the Sentencing Guidelines (“U.S.S.G.” or 7
1 Both defendants were charged in the following: Count 1, narcotics conspiracy in
violation of 21 U.S.C. § 846; Count 2, possessing 28 grams or more of cocaine base with
intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(B); Count 3,
possessing 100 grams or more of heroin and butyryl fentanyl with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); Count 4, possessing 40 grams or more of
fentanyl with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B);
Count 5, possessing powder cocaine with intent to distribute in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C); Count 6, maintaining a drug involved premises in violation of 21
U.S.C. § 856(a)(1); Count 7, possessing firearms in furtherance of drug trafficking crimes
in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. For Counts 2 through 7, both
defendants were also charged with aiding and abetting the alleged crimes in violation
of 18 U.S.C. § 2.
Willis was individually charged in Count 9, possessing firearms and ammunition
as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); Count 10, possessing
heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and
Count 11, possessing cocaine base with intent to distribute in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C).
Pierce was individually charged in Count 8, possessing firearms and
ammunition as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and Count 12,
possessing cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C).

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“Guidelines”). For the reasons that follow, we affirm the convictions, but remand 1
Willis’s sentence. 2
BACKGROUND 3
The issues raised on appeal center on Willis’s and Pierce’s use of two 4
apartments—the upper and the lower—at 70 Henrietta Avenue, Buffalo, New 5
York(“70 Henrietta”) from which they conducted a drug trafficking operation. 6
Officers of the Erie County Sheriff’s Office (“ECSO”) executed search warrants at 7
that location and seized narcotics, drug trafficking paraphernalia, firearms, and 8
ammunition. 9
Testimony adduced by the government at trial established that on the 10
morning of December 1, 2016, the ECSO had attempted to execute a warrant 11
authorizing a search of 108 Peck Street, of Willis’s person, and of his black 12
Pontiac Grand Prix. Efforts to locate Willis led them to the two apartments at 70 13
Henrietta. While conducting surveillance, Deputy William Granville of the ECSO 14
saw a dark-colored Dodge Charger pull into the front of 70 Henrietta, followed 15
closely by a blue Chevrolet Equinox (the “Equinox”). Defendant Isiah Pierce was 16
driving the Charger, while Tanzie Fuller was driving the Equinox, which was 17

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registered to Willis. The drivers of both vehicles got out and entered the front 1
door at 70 Henrietta. 2
After a short period, Pierce and Fuller exited 70 Henrietta, and both got 3
into Willis’s Equinox. Shortly thereafter, Officer Cully Ferrick stopped Pierce 4
who was driving the Equinox for excessive tint on the glass. After a brief 5
conversation, Detective Timothy Donovan asked him to step out of the vehicle 6
because he “smelled the odor of marijuana.” Pierce App’x at 51. The officers 7
searched the vehicle and recovered a “violation” or non-criminal quantity of 8
marijuana, as well as five cellphones. A search of Pierce’s person turned up 9
approximately $1,700 in cash and a set of keys. At that point, Pierce was arrested, 10
searched, and taken to the ECSO headquarters at 45 Elm Street (“45 Elm”). Once 11
they arrived, Pierce was left handcuffed in an interview room. Detective 12
Donovan testified that at some later point he went back into the interview room 13
and “found a large amount of narcotics that were underneath the desk area” that 14
had not been in the room when he first left Pierce there. Pierce App’x at 55. 15
Although none of these materials had been found in the search incident to 16
Pierce’s arrest, Donovan testified that he found “a plastic bag which contained 17
numerous knotted plastic bags that contained white rock-like substance that 18

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appeared to be cocaine, and also bundles full of what appeared to be heroin” 1
along with “glass wax envelopes that are commonly used to package heroin.” 2
Pierce App’x at 56. 3
While Pierce was being detained by the ECSO, Deputy Granville 4
continued his surveillance of 70 Henrietta. Deputy Granville testified that around 5
2:15 PM, he saw Willis leaving 70 Henrietta, appearing to lock the front door, 6
entering a black Pontiac, and driving away. Around 2:30 PM, officers stopped 7
Willis’s car, searched and arrested him, and searched the car from which they 8
recovered cash, keys, and two cellphones. Deputy Granville testified that, after 9
seeing Willis leave, he remained outside 70 Henrietta for two additional hours 10
until about 4:15 PM when he was notified that other officers were coming to 70 11
Henrietta to execute a search warrant. 12
After Willis was arrested, he was brought to 45 Elm where he was placed 13
in an interview room. Detective Timothy Carney testified that he saw Willis 14
“digging down his pants,” that he and Detective Daniel Granville entered the 15
room, and that Detective Granville located narcotics in a bag on the floor. Willis 16
App’x at 70. In the bag, the officer claimed to find yellow bags commonly used 17
for packaging heroin, and bags that contained crack cocaine and heroin. The 18

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drugs found on the floor at 45 Elm were the subject of Counts 10 and 11 charging 1
Willis with possession of heroin and cocaine with intent to distribute and Count 2
12 charging Pierce with possession of cocaine with intent to distribute. Both 3
defendants were acquitted on these counts. 4
Later that day, the officers executed a search warrant for the lower 5
apartment at 70 Henrietta. Keys recovered from Willis at his arrest opened the 6
front door at 70 Henrietta, as well as the door to the lower apartment. The 7
officers recovered a cache of weapons including assault rifles, a pistol, 8
magazines, and rounds of ammunition. The officers also recovered 10.35 grams 9
of cocaine base and tools of the drug trade including baking soda, digital scales 10
with traces of white powder, a metal strainer, bags, whisks, a spoon, a fork, a 11
large quantity of small rubber bands, razors, a latex glove, and a metal weight. In 12
addition, the officers seized a title, in Willis’s name, to the Chevrolet Equinox 13
that Fuller and Pierce had been driving earlier, insurance documents in the name 14
of Larry Willis, a Buffalo police incident card, a traffic ticket, DMV paperwork, 15
and photographs of Willis and Pierce together. 16
Later that evening, the officers executed a search warrant for the upper 17
apartment. Keys recovered from Pierce at his arrest opened the front door of 70 18

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Henrietta, the door to the upper apartment, and a padlocked bedroom door in 1
that apartment. The keys also included a Tops Friendly Markets Bonus Card on 2
the key ring that was connected to the account of Pierce’s girlfriend, Courtney 3
Brouse. 4
Inside the upper apartment, officers recovered a separate cache of 5
weapons that included handguns, a large capacity magazine, rounds of 6
ammunition, a digital scale, packaging materials, and three bags containing 7
167.98 grams of butyryl fentanyl and heroin. The officers also recovered cocaine 8
base and additional quantities of heroin, fentanyl, and butyryl fentanyl. The total 9
weight of the additional heroin and fentanyl was approximately 50 grams. The 10
weight of the cocaine seized was approximately 142 grams of base, and 11
approximately 253 grams of powder. One of the main factual issues on appeal 12
centers on whether the contraband found in the two apartments could be 13
attributed to either or both defendants. 14
The arresting officers subsequently obtained warrants to search the phones 15
seized from Willis and Pierce. One of the phones recovered from the Equinox 16
had received texts addressing the recipient as “Zeke,” Pierce’s nickname, and 17
inquiring about Pierce’s girlfriend and daughter, tending to show that the phone 18

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belonged to Pierce. The phone had also received a text message saying “Yo, 1
everyone like that tester, said it was real good, the best they seen. But I’m out of 2
work. Got half a bun.” Doc. 201 at 19. 3
Both defendants were subsequently indicted and proceeded to trial. The 4
government’s theory was that the two apartments were jointly used by Willis 5
and Pierce to manufacture and distribute drugs. The government argued that 6
Willis resided in the lower apartment, pointing to his ownership of keys to the 7
unit and the presence of his personal effects there. Pierce, according to the 8
government, controlled the upper unit as evidenced by his possession of keys to 9
the unit and to the padlocked interior bedroom where the drugs and guns were 10
found. As evidence of joint control, the government argued that after being taken 11
to 45 Elm, Willis discarded heroin and cocaine wrapped in the same yellow 12
packaging found in the upper unit and that the crack cocaine Pierce discarded at 13
45 Elm was wrapped in blue envelopes that were the same as those found in the 14
lower unit. 15
The jury returned a mixed verdict. Willis was convicted of possessing less 16
than 28 grams of cocaine base with intent to distribute (Count 2); possessing 17
powder cocaine with intent to distribute (Count 5); maintaining a drug involved 18

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premises (Count 6); possessing a firearm in furtherance of a drug trafficking 1
crime (Count 7); and possession of firearms and ammunition as a felon (Count 9). 2
Pierce was convicted of possessing 28 or more grams of cocaine base with 3
intent to distribute (Count 2); possessing 100 grams or more of heroin and 4
butyryl fentanyl with intent to distribute (Count 3); possessing 40 grams or more 5
of fentanyl with intent to distribute (Count 4); possessing powder cocaine with 6
intent to distribute (Count 5); maintaining a drug involved premises (Count 6); 7
possessing a firearm in furtherance of drug trafficking (Count 7); and possession 8
of firearms and ammunition as a felon (Count 8). 9
Both defendants were acquitted of the narcotics conspiracy charged in 10
Count 1, and of possessing the cocaine base and heroin that two officers claimed 11
to have found in the interview rooms at 45 Elm as charged in Counts 10, 11, and 12
12. Willis was also acquitted of possessing the heroin and fentanyl found in the 13
upper apartment charged in Counts 3 and 4. After trial, both defendants moved 14
for judgments of acquittal under Federal Rule of Criminal Procedure 29 15
challenging the sufficiency of the evidence supporting their convictions. The 16
district court denied both motions. 17

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Prior to sentencing, Willis filed objections to certain factual portions of the 1
Pre-Sentence Investigation Report (“PSR”). He argued against the PSR’s 2
attribution to him of: currency recovered from Pierce, currency recovered from 3
369 Wabash Avenue (“369 Wabash”), the quantities of drugs found in the upper 4
apartment, and the total quantity of drugs found at 45 Elm (which he had been 5
acquitted of possessing). 6
The district court agreed with Willis in part, finding that the currency 7
found at 369 Wabash, the home of Pierce’s girlfriend Courtney Brouse, was not 8
attributable to Willis, but accepted the remaining facts in the PSR as its findings. 9
The district court concluded that the drugs located in the upper apartment and 10
the interview rooms at the police station were “possessed within the scope and in 11
furtherance of the jointly undertaken criminal activity and were reasonably 12
foreseeable,” Willis App’x at 135, and incorporated into the Guidelines 13
calculation all the drugs from the upper apartment and the cocaine base that 14
Willis and Pierce were acquitted of possessing in the police interview rooms at 45 15
Elm. These findings had a significant effect on the district court’s Guidelines 16

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calculation. The inclusion of the disputed contraband increased Willis’s base 1
offense level on Counts 2, 5, and 6 from 24 to 30.2 2
The district court determined that Willis’s Guidelines range was 248 to 295 3
months. The district court agreed with Willis that the Guidelines were “too 4
high,” Willis App’x at 163, and sentenced Willis to 150 months concurrently on 5
all counts, except for a mandatory consecutive 60-month term for possession of a 6
firearm in furtherance of drug trafficking, for an aggregate term of 210 months’ 7
imprisonment. The district court did not state explicitly whether Willis’s federal 8
sentence would run concurrently to a then-anticipated state sentence, although 9
Willis’s counsel had noted on the record his assumption that this was the district 10
court’s intention. After calculating Pierce’s Guidelines range, the district court 11
sentenced Pierce to 168 months.3 12
2 The district court also applied a two-level enhancement under U.S.S.G. §
2d1.1(b)(12) for maintaining a premises for the purpose of manufacturing or
distributing a controlled substance.
3 Pierce does not challenge his sentence. Accordingly, we need not discuss the
details of his sentencing. While Pierce contends that the district court plainly erred in
authorizing forfeiture of currency and cars, Pierce has not sufficiently argued this issue
on appeal. “Merely mentioning or simply stating an issue in an appellate brief is
insufficient to preserve it for our review.” Niagara Mohawk Power Corp. v. Hudson River-
Black River Regulating Dist., 673 F.3d 84, 107 (2d Cir. 2012). Pierce fails to cite to any
evidence that the currency and cars did not constitute drug proceeds, and the order
itself notes that no third parties filed claims to the assets despite receiving notice that
the assets would be forfeited.

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This appeal followed. 1
DISCUSSION 2
Defendants contend that the government failed to adduce sufficient 3
evidence on all counts of conviction. Because, as discussed below, the 4
government’s evidence of guilt on nearly all counts was substantial, we discuss 5
in detail only the defendants’ colorable insufficiency arguments. Willis, in this 6
regard, contends that though the evidence at trial supported the inference that he 7
had access to the lower apartment, it was insufficient to prove that he possessed 8
the cocaine base and firearms found in the lower apartment, and the powder 9
cocaine found in the upper apartment. Willis also argues that the district court 10
improperly calculated his Guidelines range when it found that, though acquitted 11
of the charged conspiracy, he jointly possessed all the narcotics in the upper 12
apartment with Pierce. As noted, this issue bears heavily on his sentence. 13
Pierce, for his part, argues that the evidence produced at trial equally 14
supports the inference that others connected to the apartments controlled the 15
drug operation and possessed the drugs and the weapons seized by law 16
enforcement. Pierce also contends that the district court abused its discretion in 17
denying his motion for a new trial on ineffective assistance of counsel grounds, 18

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and that the defendants were denied a fair trial because the district court 1
improperly allowed expert testimony of a Drug Enforcement Agency (“DEA”) 2
witness concerning the means and methods of drug trafficking, allowed 3
testimony of the parole officers of Willis and Pierce “thus underscoring their 4
prior convictions,” and allowed the government in its summation to “improperly 5
invite[] the jury to help law enforcement solve the drug problem.” Pierce Br. at 6
51-52. 7
I 8
A. Legal Standards 9
In evaluating the sufficiency of the evidence, we ask “whether, after 10
viewing the evidence in the light most favorable to the prosecution, any rational 11
trier of fact could have found the essential elements of the crime beyond a 12
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in 13
original). In performing this analysis, we are required to draw all permissible 14
inferences in favor of the government and resolve all issues of credibility in favor 15
of the jury’s verdict. United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). In 16

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addition, we must “consider the evidence presented in its totality, not in 1
isolation.” United States v. Anderson, 747 F.3d 51, 59 (2d Cir. 2014).4 2
The defendants contend that the government adduced insufficient 3
evidence that either of them possessed any of the contraband recovered from 70 4
Henrietta. At trial, the government pursued theories of constructive possession. 5
“Constructive possession exists when a person has the power and intention to 6
exercise dominion and control” over the contraband in question and may be 7
shown by direct or circumstantial evidence. United States v. Payton, 159 F.3d 49, 8
56 (2d Cir. 1998). Mere presence is insufficient. However, “presence under a 9
particular set of circumstances from which a reasonable jury could conclude that 10
the defendant constructively possessed contraband” is sufficient. United States v. 11
Facen, 812 F.3d 280, 287 (2d Cir. 2016). For example, documents pertaining to a 12
defendant found in the same location as narcotics, possession of a key to the 13
location where drugs are found, or whether the drugs are in plain view, are 14
factors relevant to constructive possession. Facen, 812 F.3d at 287 (collecting 15
cases). Once possession of narcotics has been established, a defendant’s 16
possession of firearms, and “of equipment to weigh, cut and package drugs is 17
4 Unless otherwise indicated, in quoting cases, all internal quotation marks,
alterations, emphases, footnotes, and citations are omitted.

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highly probative of a purpose to distribute.” United States v. Martinez, 54 F.3d 1
1040, 1043-44 (2d Cir. 1995). 2
B. Discussion 3
Pierce argues that the evidence produced at trial supports the inference 4
that other people—some combination of Tanzie Fuller, his codefendant Willis, or 5
the individuals named on the lease and otherwise connected to the apartments— 6
possessed the drugs and the weapons found in the upper apartment. Regarding 7
the keys in particular, Pierce argues that the circumstances of the surveillance 8
and arrest suggest that Tanzie Fuller also could have been the owner of the keys. 9
To be sure, it is true that the evidence produced at trial connecting Pierce 10
to 70 Henrietta—and consequently to the drugs and weapons which were 11
recovered—did not rule out an inference that others were involved in the drug 12
trafficking at that location. However, the government was not required to prove 13
that the contraband was not subject to the control of others, because possession 14
need not be exclusive, and the jury was not required to accept Pierce’s alternative 15
explanation of innocence. United States v. Gaines, 295 F.3d 293, 300 (2d Cir. 2002); 16
see United States v. Ogando, 547 F.3d 102, 107 (2d Cir. 2008) (“the Government is 17
not required to preclude every reasonable hypothesis which is consistent with 18

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innocence”). In other words, the fact that others may have also possessed the 1
keys, drugs, and weapons does not preclude a finding that Pierce did so as well. 2
Even so, the government’s evidence that the keys belonged to Pierce was 3
compelling. Pierce was arrested in possession of the keys and a key ring on the 4
keys held a Tops Friendly Markets Bonus Card belonging to Courtney Brouse, 5
his girlfriend and the mother of his child. In addition, the government 6
introduced a recorded statement made by Pierce to Brouse from jail that “they 7
have my keys.” Gov’t App’x at 88. Law enforcement officers found large 8
quantities of narcotics and multiple weapons in a padlocked room inside the 9
upper apartment to which Pierce held the keys. A test of DNA found on a loaded 10
Ruger 9mm semi-automatic firearm there could not exclude Pierce as a 11
contributor to the mixture of DNA, with it being 33,000 times more likely to be a 12
match to Pierce than to a random individual. Finally, the jury heard evidence 13
that a cell phone tied to Pierce received multiple text messages discussing what a 14
law enforcement witness testified was evidence of drug transactions. Given these 15
facts, a rational trier of fact could conclude that Pierce controlled the upper 16
apartment as well as the contraband seized there. 17

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For similar reasons, the evidence was sufficient for a jury to conclude that 1
Willis constructively possessed the cocaine base and weapons found in the lower 2
apartment. Willis was observed alone at 70 Henrietta for several hours on 3
December 1, 2016. He possessed keys to the front door and to the lower 4
apartment which contained various of his personal effects including his car 5
registration, insurance documents, clothing, and personal photos. Additionally, 6
law enforcement recovered a semi-automatic rifle on which DNA that likely 7
matched Willis’s was identified as well as tools of the narcotics trade. This 8
evidence was sufficient for a jury to conclude that Willis had access to, and 9
control over, the lower apartment, and therefore possessed the weapons and 10
cocaine base therein. 11
It is a closer question whether sufficient evidence supports Willis’s 12
conviction for possession of the powder cocaine found in the upper apartment. 13
There was no evidence that Willis possessed a key to the upper apartment or to 14
the padlocked closet in which the cocaine powder was stored. Neither his 15
documents nor personal effects were found there and no forensic evidence 16
otherwise connected him to it. The drugs found there were not in plain view, and 17
he was not arrested under circumstances that suggested that he had complete 18

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control over the drugs. In other words, the indicia of dominion and control that 1
tied Willis so strongly to the lower apartment do not exist for the upper 2
apartment. 3
Nonetheless, even if the evidence did not establish that Willis had 4
dominion and control over the upper apartment, a rational jury could have 5
concluded that he possessed the cocaine powder found there, if not directly, then 6
through others, namely Pierce. This is because the superseding indictment 7
charged Willis with committing and, in the alternative, aiding and abetting, the 8
crime of possession of cocaine with intent to distribute it and the district court 9
instructed the jury on this charge. 10
“Under 18 U.S.C. § 2, a defendant may be convicted of aiding and abetting 11
a given crime where the government proves that the underlying crime was 12
committed by a person other than the defendant, that the defendant knew of the 13
crime, and that the defendant acted with the intent to contribute to the success of 14
the underlying crime.” United States v. Hamilton, 334 F.3d 170, 180 (2d Cir. 2003). 15
A conviction under § 2 requires sufficient proof that the defendant knowingly 16
and willfully participated in the offense in a way that showed he intended to 17
make it succeed. 18

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Willis argues that a finding that he “aided” Pierce is impermissible 1
because the government failed to prove that Willis joined Pierce’s venture with 2
knowledge of Pierce’s crimes and the specific intent to further them. He asserts 3
that the government’s contention that the firearms in the downstairs apartment 4
were meant to protect the drugs in the upstairs apartment was not supported by 5
evidence because there were firearms in the upper apartment as well as the 6
lower apartment. He also asserts that “tools and materials [of the trade] were 7
also present in the upper unit, including digital scales, plastic sandwich bags, 8
other plastic baggies and a plastic spoon with suspected drug residue.” Willis Br. 9
at 44. But the fact that others may have also packaged and manufactured drugs 10
in the upper apartment does not mean that Willis did not aid and abet the crime 11
charged. All the tools necessary to manufacture cocaine base were found in the 12
lower apartment including baking soda, digital scales with traces of white 13
powder, a metal strainer, bags, spoons, latex gloves, and a metal weight. Most of 14
these items were not found in the upper apartment. Given these facts, a jury 15
could reasonably have concluded that Willis intended for Pierce, the guilty 16
principal, to possess the powder cocaine. There was sufficient evidence for a 17
reasonable jury to conclude that Pierce possessed the cocaine, and that Willis 18

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aided in the commission of the crime by maintaining a stash house in the lower 1
apartment, by manufacturing cocaine base (a necessary ingredient of which is 2
cocaine powder) with the tools of the trade found exclusively in the lower 3
apartment, and by keeping firearms there to protect the enterprise. See United 4
States v. Santos, 541 F.3d 63, 72 (2d Cir. 2008) (explaining that “advancing the aim 5
of a narcotics conspiracy can involve performing ancillary functions”); United 6
States v. Boissoneault, 926 F.2d 230, 234 (2d Cir. 1991) (noting that evidence of 7
intent may be found in the “paraphernalia usually possessed by drug dealers” or 8
the “materials needed to process cocaine or to package it”). The government also 9
presented evidence that Pierce was arrested driving a car registered to Willis, the 10
keys of which were linked to the multi-key ring that also opened the upper 11
apartment. On the basis of these facts, we conclude that a rational jury could 12
conclude that Willis aided and abetted Pierce’s possession of cocaine powder 13
with intent to distribute it.5 14
5 Any arguable inconsistency between the jury’s conclusion that the government
had not established a conspiracy beyond a reasonable doubt and the jury finding that
Willis aided and abetted Pierce does not change this conclusion. See Dunn v.
United States, 284 U.S. 390, 393 (1932) (“Consistency in the verdict is not necessary.”); see
also United States v. Carbone, 378 F.2d 420, 422 (2d Cir. 1967) (discussing Dunn); United
States v. Tyler, 758 F.2d 66, 70-71 (2d Cir. 1985) (noting that “there is nothing inconsistent
in our determination that the evidence was insufficient with respect to the conspiracy

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II 1
Both defendants were convicted under Count 6 for maintaining a premises 2
where drugs were manufactured or distributed. See 21 U.S.C. § 856(a)(1). To 3
convict under this statute, the government was required to prove that the 4
defendants “(1) used a place; (2) for the purpose of distributing or packaging 5
controlled substances; and (3) did so knowingly.” Facen, 812 F.3d at 290. 6
The government adduced sufficient evidence that both defendants 7
violated this provision. That evidence established that Willis possessed the 8
cocaine powder and cocaine base as well as cutting agents, packaging materials, 9
and firearms found at 70 Henrietta. That evidence also established that Pierce 10
possessed powder cocaine, cocaine base, heroin, and fentanyl at that location and 11
that the upper apartment contained little else but this contraband. Indeed, the 12
evidence strongly supported an inference that the apartment was used for little 13
else than for distributing and packaging narcotics. The seized narcotics and drug 14
paraphernalia were in sufficient quantity for the jury to conclude that the 15
defendants intended to distribute them. 16
count but sufficient with respect to the aiding and abetting count” because the “two
offenses are separate and distinct”).

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III 1
To convict for possession of a firearm in furtherance of a drug trafficking 2
offense under 18 U.S.C. § 924(c), “the government must prove that the defendant 3
possessed the firearm and that the possession occurred in furtherance of a drug 4
trafficking crime.” See United States v. Albarran, 943 F.3d 106, 118 (2d Cir. 2019). 5
Section 924(c) requires the government to establish a “nexus” between the 6
charged firearm and the charged drug selling operation. United States v. Finley, 7
245 F.3d 199, 203 (2d Cir. 2001). That nexus is established where the firearm 8
“afforded some advantage (actual or potential, real or contingent)” to the drug 9
trafficking. United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005). Section 10
924(c)(1)(A) applies where the charged weapon is readily accessible to protect 11
drugs, drug proceeds, or the dealer himself. See id. at 323. We conclude that the 12
evidence of guilt on this Count was sufficient as to both defendants. 13
Regarding Willis, a semi-automatic rifle—attributed to him as a likely 14
match by DNA evidence—was concealed in a box by the front door of the lower 15
apartment. A loaded .357 caliber Magnum pistol was found under a couch 16
cushion, and Willis’s DNA generated a likely match. Both weapons were readily 17
accessible to protect the contraband. While Willis argues that he could have 18

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possessed the weapons for purposes other than drug trafficking, the combination 1
of drugs and tools of the drug trade in the lower apartment, and the fact that 2
Willis lived elsewhere, provide adequate support for the jury’s verdict that the 3
firearms were used in furtherance of drug trafficking. 4
Regarding Pierce, a loaded Ruger handgun—attributed to him as a likely 5
match by DNA evidence—was found inside the padlocked upper apartment 6
room to which he held the key. This loaded handgun was readily accessible to 7
protect the powder cocaine, cocaine base, heroin, and fentanyl found near the 8
gun. Notably, Pierce did not live where the weapons were located and kept them 9
at an apartment that served as a stash house. Because the weapons were readily 10
accessible to protect drugs or drug proceeds, a rational trier of fact could have 11
found that Pierce was guilty of possessing a weapon in furtherance of drug 12
trafficking. 13
IV 14
A. Evidentiary and Summation Challenges 15
Defendants argue that the district court abused its discretion in certain of 16
its evidentiary rulings. They argue that it was error for the district court to allow 17
a DEA witness to present expert testimony concerning the “means and methods 18

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of drug trafficking” and then to permit the testimony of the parole officers of 1
Willis and Pierce which, according to them, served no purpose other than 2
underscoring their prior convictions. Finally, they contend that the district court 3
improperly allowed the prosecutors to excessively compliment the investigating 4
officers during closing arguments, thereby allowing the government to 5
“improperly invite[] the jury to help law enforcement solve the drug problem.” 6
Pierce Br. at 51-52. Defendants assert that this trio of errors combined to deny 7
them a fair trial. Defendants’ challenges are without merit. 8
We review the district court’s evidentiary rulings for abuse of discretion. 9
See United States v. Fazio, 770 F.3d 160, 165 (2d Cir. 2014). “[S]o long as the district 10
court has conscientiously balanced the proffered evidence’s probative value with 11
the risk for prejudice, its conclusion will be disturbed only if it is arbitrary or 12
irrational.” United States v. Scully, 877 F.3d 464, 474 (2d Cir 2017). 13
When parties seek to introduce expert testimony in accordance with Rule 14
702 of the Federal Rules of Evidence, the trial judge has “the task of ensuring that 15
an expert’s testimony both rests on a reliable foundation and is relevant to the 16
task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). The 17
district court must analyze whether the proffered expert testimony is relevant 18

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and “whether the proffered testimony has a sufficiently reliable foundation to 1
permit it to be considered.” United States v. Cruz, 363 F.3d 187, 192 (2d Cir. 2004). 2
“A district court’s decision to admit expert testimony will not be reversed unless 3
it is manifestly erroneous.” Boissoneault, 926 F.2d at 232. 4
Over Pierce’s objection, the government proffered that it intended to ask 5
Special Agent James McHugh, a DEA expert witness, whether certain items 6
found at 70 Henrietta were “the kinds of paraphernalia or tools that are typically 7
found in the possession of people who are distributing narcotics.” Doc. 201 at 8
205. The district court ruled that the expert witness could testify only “in general 9
terms,” about those items but could not review photos of or testify about the 10
actual paraphernalia found at 70 Henrietta. Doc. 201 at 206; see United States v. 11
Nersesian, 824 F.2d 1294, 1308 (2d Cir. 1987). 12
When testifying, the government’s witness stayed within these bounds. 13
The government asked whether items like “whisks, sifters, and mixers [] have 14
any role [in] narcotics trafficking,” and the witness confirmed that these were 15
“typical tools” of the trade. Doc. 201 at 212-13. Further, the witness testified that 16
references to “stamps” in text messages could refer to packaging for cocaine or 17
heroin. 18

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We are cautious of “the risk that ‘dual’ police testimony may prejudice 1
defendants at trial, both inflating an officer’s expert opinions through his 2
personal involvement in the case and bathing his lay testimony in the aura of 3
‘expertise’.” Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 H ARV. 4
L. R EV. 1995, 2025 (2017); see United States v. Dukagjini, 326 F.3d 45, 53-54 (2d Cir. 5
2003). Here, however, McHugh was not such a witness. While he described the 6
significance of language and physical evidence in the abstract, he drew no 7
specific conclusions about the significance of that conduct or of the language in 8
this particular case, which weakens any claim of prejudice. We conclude that the 9
district court did not err in admitting McHugh’s testimony. 10
Nor was it manifestly erroneous for the district court to admit testimony 11
from defendants’ parole officers. The government justified the need for the 12
testimony on the theory that the parole officers were familiar with the 13
defendants’ familial relationships and their living situations. At trial, Parole 14
Officer McPartland testified to the familial relationship between Pierce and the 15
leaseholder at 70 Henrietta, Pierce’s nickname “Zeke,” Pierce’s long-term 16
relationship with his girlfriend Courtney Brouse, and the fact that Pierce lived 17
with Brouse at 369 Wabash. 18

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Defendants objected on the grounds that the testimony “underscor[ed] 1
their prior convictions,” “was of minimal value,” and was merely cumulative. 2
Pierce Br. at 51, 55. Although the testimony may well have reminded the jury 3
that the defendants had prior criminal convictions, any prejudice was minimal. 4
The jury already knew that the defendants were predicate felons because they 5
had stipulated to those prior convictions. Moreover, the testimony did have 6
probative value. It was probative of Pierce’s relationship to individuals directly 7
connected to 70 Henrietta, and of Pierce’s nickname, “Zeke” which appeared in 8
multiple text messages discussing drug transactions, and the district court 9
weighed the evidence’s risk of prejudice with its probative value. Pierce asserts 10
that this information “came in through other witnesses anyway,” but does not 11
provide any record support for the assertion. Pierce Br. at 55. In any event, a 12
mere showing “of some alternative means of proof” is insufficient to establish an 13
abuse of discretion. Old Chief v. United States, 519 U.S. 172, 183 n. 7 (1997). 14
Finally, the defendants’ challenge to the government’s summation likewise 15
fails. Defendants assert that it was inappropriate for the government to comment 16
on the “dedication and perseverance of the Erie County Sheriff’s office detectives 17
working to get [] weapons and [] addictive drugs … out of the community” and 18

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to reference the detectives “chas[ing] down all sorts of leads, every red herring, 1
until the last pieces of the puzzle came together and the picture was clear.” Gov’t 2
App’x at 83–84. 3
“A defendant asserting that a prosecutor’s remarks warrant a new trial 4
faces a heavy burden, because the misconduct alleged must be so severe and 5
significant as to result in the denial of his right to a fair trial.” United States v. 6
Banki, 685 F.3d 99, 120 (2d Cir. 2012). “In determining whether an inappropriate 7
remark amounts to prejudicial error, we look to the severity of the misconduct, 8
the measures adopted to cure the misconduct, and the certainty of conviction 9
absent the misconduct.” United States v. Caracappa, 614 F.3d 30, 41 (2d Cir. 2010). 10
Because the defendants did not object to any of the summation at trial, their 11
challenge is subject to plain error review. See F ED. R. C RIM . P. 52(B ). 12
Applying these principles, we see no error and certainly no plain error. 13
The defendants have not demonstrated that any of these remarks were 14
sufficiently improper to have denied them a fair trial. In other words, this is not 15
the “rare case in which [alleged] improper comments in a prosecutor’s 16

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summation are so prejudicial that a new trial is required.” United States v. 1
Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992).6 2
B. Rehaif-related Section 922(g) Challenges 3
Defendants argue that their convictions as felons in possession of firearms 4
under 18 U.S.C. § 922(g) must be vacated in light of the Supreme Court’s decision 5
in Rehaif v. United States, 139 S. Ct. 2191 (2019). There, the Court held that a 6
defendant’s knowledge of his status as a felon is an element of the offense and 7
that the government bore the burden of proving that knowledge. Id. at 2194. 8
Rehaif was decided after their convictions and the issue reaches us on plain error 9
review. 10
Subsequent to Rehaif, this Court decided United States v. Miller, et al., 954 11
F.3d 551 (2d Cir. 2020) and United States v. Balde, 943 F.3d 73 (2d Cir. 2019). Both 12
cases effectively foreclose the defendants’ attacks on their convictions. When 13
6 Pierce also raises various issues relating to the effectiveness of his trial counsel.
Though it is not a rigid rule, this circuit has a “baseline aversion to resolving
ineffectiveness claims on direct appeal.” United States v. Leone, 215 F.3d 253, 256 (2d Cir.
2000). We do not believe that the record is sufficiently developed for us to appropriately
assess Pierce’s ineffective assistance of counsel claim. We thus refrain from deciding it
and Pierce is free to raise the claim in a petition for habeas corpus under 28 U.S.C. §
2255. See United States v. Oladimeji, 463 F.3d 152, 154 (2d Cir. 2006).

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reviewing for plain error, we consider whether “(1) there is an error; (2) the error 1
is clear or obvious, rather than subject to reasonable dispute; (3) the error affected 2
the appellant’s substantial rights; and (4) the error seriously affects the fairness, 3
integrity or public reputation of judicial proceedings.” United States v. Miller, 954 4
F.3d 551, 557–58 (2d Cir. 2020). Here, it is undisputed that the first two elements 5
of the plain error test were met. The jury was not instructed consistent with 6
Rehaif, and that was clearly error. We need not reach the third element – whether 7
the error affected the appellant’s substantial rights – since we conclude that the 8
fourth element was not met; the error did not affect the fairness, integrity or 9
public reputation of the judicial proceedings.7 10
In Miller, this Court held that the erroneous jury instruction was not 11
reversible plain error because the defendant’s PSR revealed that he was 12
7 Defendants’ Rehaif-related jurisdictional challenge to the superseding indictment
also fails. Federal courts have jurisdiction to adjudicate a criminal charge as long as “the
indictment alleges an offense under U.S. criminal statutes.” United States v. Prado, 933
F.3d 121, 134 (2d Cir. 2019). “[T]he standard for the sufficiency of an indictment is not
demanding,” Balde, 943 F.3d at 89, and requires little more than that the indictment
“track the language of the statute charged and state the time and place (in approximate
terms) of the alleged crime,” United States v. Stringer, 730 F.3d 120, 124 (2d Cir. 2013).
The superseding indictment here, which tracks the language of § 922(g)(1), plainly
meets this standard. See Balde, 943 F.3d at 89–91 (holding that an indictment tracking the
statutory language of § 922(g)(5)(A) remains jurisdictionally sufficient after Rehaif).

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sentenced to, and served, more than one year in prison for a prior felony 1
conviction. 954 F.3d at 559-60. In this case, it is undisputed that both defendants 2
were sentenced to, and served, more than one year in prison for their prior 3
felony convictions. Their stipulations to that fact conclusively prove that they 4
knew of their status. See id. at 560 (noting that “had the Rehaif issue been foreseen 5
by the district court, [defendant] would have stipulated to knowledge of his 6
felon status to prevent the jury from hearing evidence of his actual sentence”). 7
Therefore, the district court’s erroneous jury instruction on this issue was not 8
plain error. 9
V 10
A. Guidelines Calculation 11
Willis contends that the district court erroneously calculated his 12
Guidelines range when it found that, although he had been acquitted of the 13
conspiracy and most substantive narcotics possession counts, Counts 3, 4, 10, and 14
11, he nonetheless, for sentencing purposes, possessed all the narcotics seized 15
from 70 Henrietta and 45 Elm because he participated in jointly undertaken 16
criminal activity with Pierce. Specifically, Willis argues that the government 17
failed to meet its burden of proving jointly undertaken criminal activity between 18

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Willis and Pierce by a preponderance of the evidence and that this failure was 1
conspicuous insofar as the district court rested its finding on its conclusion that 2
Willis possessed the drugs found at 45 Elm. 3
This Court has recognized that to hold the defendant accountable for 4
jointly undertaken criminal activity, the district court must make two findings: 5
“1) that the acts were within the scope of the defendant’s agreement and 2) that 6
they were foreseeable to the defendant.” United States v. Studley, 47 F.3d 569, 574 7
(2d Cir. 1995). When applying these requirements, district courts look to (1) 8
“whether the participants pool[ed] their profits and resources, or whether they 9
work[ed] independently”; (2) “whether the defendant assisted in designing and 10
executing the illegal scheme”; and (3) “what role the defendant agreed to play in 11
the operation, either by an explicit agreement or implicitly by his conduct.” Id. at 12
575 (emphasis in original). 13
A court may consider as “relevant conduct” drugs distributed by co- 14
conspirators in the course of the conspiracy even where a defendant is acquitted 15
of a drug conspiracy. United States v. Bell, 795 F.3d 88, 105-06 (D.C. Cir. 2015); but 16
see United States v. Bell, 808 F.3d 926, 927 (D.C. Cir. 2015) (Kavanaugh, J.) 17
(“Allowing judges to rely on acquitted or uncharged conduct to impose higher 18

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sentences than they otherwise would impose seems a dubious infringement on 1
the rights to due process and to a jury trial.”). Acquitted conduct may be 2
considered by the sentencing court so long as it is based on reliable information 3
and is proven by a preponderance of the evidence. See United States v. Reese, 33 4
F.3d 166, 174 (2d Cir. 1994); United States v. Romano, 825 F.2d 725, 728 (2d Cir. 5
1987). 6
Willis’s contention that the district court improperly relied on the narcotics 7
allegedly recovered by law enforcement at 45 Elm—and which he was acquitted 8
of possessing—to find that he and Pierce engaged in jointly undertaken criminal 9
activity has merit.8 Detective Carney testified that he and Detective Daniel 10
Granville entered the interview room and “located the narcotics on the floor … 11
on the side of the desk that Mr. Willis was sitting on” inside a “plastic baggy 12
[that] appeared to have human feces on it.” Willis App’x at 70. The detectives, 13
however, did not submit the bag for DNA testing. And though Detective Carney 14
8 Specifically, Detective Carney testified that he recovered about 3.08 grams of
cocaine base and about 1.32 grams of heroin in yellow glassine envelopes—which were
found only in the upper apartment attributed to Pierce—on the floor of the interview
room where Willis was detained after arrest that appeared to have human feces on it.
Likewise, Detective Donovan testified that Pierce left cocaine base in blue glassine
envelopes in his separate interview room, which matched the envelopes found in the
lower apartment to which Willis held keys. Detective Donovan did not testify that the
recovered contraband appeared to have feces on it.

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testified that “the interview room that Mr. Willis was placed in has a video 1
camera,” it was apparently set to live feed and made no recording. Doc. 198 at 91. 2
Detective Carney further testified that after he and Detective Granville recovered 3
the drugs, he obtained a search warrant for the lower apartment at 3:35 PM and 4
then went on to execute the search warrant. But the search warrant application 5
submitted by Detective Carney did not include the fact that Willis dropped 6
drugs in the interview room. Doc. 34, Exh. A. 7
Additional record evidence renders this testimony implausible, including 8
the fact that no drugs were found on either defendant when they were searched 9
at the time of their arrest. Furthermore, Willis was apparently found to have had 10
drugs concealed in his body despite the fact that there was no particular reason 11
for him to go to such lengths to hide any drugs he was carrying while driving 12
around the neighborhood; that each defendant independently decided to extract 13
and discard these drugs while handcuffed in an isolated police station interview 14
room makes this set of events all the less likely. More unlikely still that each 15
defendant had drugs matching only the packaging found in the apartment to 16
which he was less strongly linked. 17

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In a footnote, the district court stated that “even though the evidence may 1
not have met the standard of beyond a reasonable doubt, it did constitute proof 2
by a preponderance of the evidence.” Willis App’x at 135 n. 2. But the district 3
court did not say why. In failing to do so, the district court did not account for 4
the gaps in the government’s evidence. See Menefee, 391 F.3d at 164 (“We have 5
found a district court’s factual findings to be clearly erroneous where the court 6
has failed to synthesize the evidence in a manner that accounts for conflicting 7
evidence or the gaps in a party’s evidentiary presentation.”). It was therefore 8
clearly erroneous for the district court to rely on the drugs found at 45 Elm to 9
conclude that a preponderance of the evidence establishes that Willis conspired 10
with his co-defendant Pierce to possess with intent to distribute and to distribute 11
the drugs found upstairs at 70 Henrietta Avenue. In failing to account for the 12
gaps in the government’s evidentiary presentation for this acquitted conduct, the 13
district court erred in cross-attributing the drugs found in the upper apartment 14
when it sentenced Willis. The error requires a remand for resentencing and 15
reconsideration of whether the government met its burden of proving jointly 16
undertaken criminal activity between Willis and Pierce by a preponderance of 17
the evidence, and if so, the scope of that activity. 18

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B. Concurrent Sentencing 1
Guidelines § 5G1.3(c), provides that if “a state term of imprisonment is 2
anticipated to result from another offense that is relevant conduct to the instant 3
offense of conviction . . . the sentence for the instant offense shall be imposed to 4
run concurrently to the anticipated term of imprisonment.” U.S.S.G. § 5G1.3(c). 5
Section 5G1.3(c) applied to Willis’s federal sentencing. A state term of 6
imprisonment was anticipated to result from his pending New York weapons 7
possession charges and although at sentencing the district court acknowledged 8
that this conduct was relevant it failed to explicitly rule whether Willis’s federal 9
sentence would run concurrently. Because section 5G1.3(c) was a pertinent 10
Sentencing Commission policy statement, the district court was required to take 11
it into account. United States v. Cavera, 550 F.3d 180, 188–89 (2d Cir. 2008) (en 12
banc) (citing 18 U.S.C. § 3553(a)(5)). But the only reference to whether Willis’s 13
sentence would run concurrently came from Willis’s counsel who stated on the 14
record that he understood that Willis’s seven-year state sentence was “going to 15
run concurrent to whatever” sentence the district court imposed. Willis App’x at 16
157. Nowhere did the district court express a contrary intention; nevertheless, 17
neither the transcript nor the written judgment confirms counsel’s understanding 18

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that the sentence would be concurrent. Therefore, Willis’s sentence is remanded 1
to the district court to expressly rule whether the sentence will run concurrently 2
with his state sentence. 3
CONCLUSION 4
For the reasons stated herein, the judgment of the district court is 5
AFFIRMED in part and VACATED in part. Willis’s sentence is remanded for 6
resentencing and clarification. 7

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