author: BARRON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Senny ARIAS, Defendant, Appellant.
    No. 15-1946
    United States Court of Appeals, First Circuit.
    February 17, 2017

      Paul J. Garrity, Boston, MA, was on brief for appellant.
    Demetra Lambros, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Carmen M. Ortiz, United States Attorney, and Theodore B. Heinrich, Assistant United States Attorney, were on brief, for appellee.
    Before LYNCH, LIPEZ, and BARRON, Circuit Judges.
   BARRON, Circuit Judge.

Senny Arias appeals his convictions and sentence for possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to distribute heroin, in violation of 21 U.S.C. § 846. We affirm.

I.

The charges brought against Arias stem from an investigation that began in 2012 of Jason Melchionda. Melchionda was the suspected head of a drug-trafficking organization operating on Massachusetts’ North Shore. Pursuant to a warrant, law enforcement officers serving on a task force for the United States Drug Enforcement Agency (“DEA”) tapped the phones of Melchionda and several of his associates. From those conversations, the officers learned that someone named “Sarnie” was supplying large quantities of heroin to Melchionda. The officers thus began to surveil the movements of Melchionda.

On July 2, 2013, officers on the task force observed the person that they believed to be “Sarnie” participate in a drug transaction and then drive away in a Nissan Murano. The Murano was titled to Luis Rodriguez. Based on this information, Detective David Gecoya, a Saugus, Massachusetts Police Department officer who had been deputized to the DEA task force, sought a warrant to attach a Global Positioning System (“GPS”) tracker to the Murano. Gecoya stated in the warrant affidavit — wrongly, as it turned out — that “Sarnie” is an alias for Rodriguez.

A little more than two weeks later, on July 11, 2013, Arias appeared at the police station in Saugus. He was there to bail out Bryan Gonzalez — who is apparently known as “Chicken Legs” — after Gonzalez had been arrested for driving the Murano without a license. Arias then left the station and went to a towing company to retrieve the Murano.

Arias provided a driver’s license to the towing company, which turned over a photocopy of that license to Detective Gecoya. Detective Gecoya identified the person depicted in the license as a person who had been surveilled during the course of the investigation of Melchionda. Then, on July 23, 2013, Detective Gecoya observed another drug transaction involving “Sarnie” driving the Murano and identified the participant as the same person depicted in the license that Gecoya had been given by the towing company — that is, Arias.

On July 24, Detective Sean Moynihan, an officer with the Saugus Police Department, pulled over the Murano at the request of Detective Gecoya. Detective Moy-nihan identified the driver as Arias. About two weeks later, on August 6, Officer Cabral, another officer with the Saugus Police Department, made a similar short stop of the Murano, also at Detective Gecoya’s direction. Officer Cabral identified the driver as, once again, Arias.

Detective Gecoya arrested Arias on August 15. At the time of his arrest, Arias had 77 bags of heroin — totaling 22.4 grams — on his person. Additional heroin was recovered in Arias’s apartment. Later that day, Arias had an initial appearance and was remanded to the authority of the United States Marshals Service.

On September 12, 2013, Arias was indicted on two federal criminal counts: conspiracy to possess with intent to distribute and to distribute heroin, in violation of 21 U.S.C. § 846; and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). The indictment also contained an order of forfeiture of any property used to facilitate the commission of the crimes, under 21 U.S.C. § 853.

The trial occurred in May of 2015. The jury convicted Arias on both counts. At sentencing, the District Court concluded that Arias was responsible for the possession and sale of over 400 grams of heroin, but less than 700 grams. On that basis, the District Court determined Arias’s base-offense level under the United States Sentencing Guidelines to be 26. The District Court also determined that Arias’s criminal history category was I. The District Court thus calculated Arias’s guidelines sentencing range to be 63 to 78 months’ imprisonment. The District Court then sentenced Arias to a term of imprisonment of 66 months.

Arias now raises a number of challenges to his convictions based on errors that he contends occurred both before and during the trial. He also challenges his sentence. We consider each claim of error in trun, starting with the ones that concern the rulings that the District Court made before the trial began.

II.

Arias contends that the District Court erred in four respects prior to the start of the trial, and that each of these erroneous pre-trial rulings requires the reversal of his convictions. He first argues that the District Court erred in denying his motion for what is known as a Franks hearing, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to determine whether the affidavit that Detective Gecoya filed in support of the warrant to place the GPS tracking device on the Murano contained a false statement that he made in reckless disregard of the truth. Arias next contends that the District Court erred in denying a motion to suppress evidence stemming from the two traffic stops of the Murano, while Arias was driving it, because Arias contends that the officers lacked the reasonable suspicion of criminal activity that the Fourth Amendment requires in order for the stops to have been lawful. Third, Arias contends that the District Court erred by not granting his'attorney leave to file a suppression motion after the passing of the deadline that the District Court had set for the filing of suppression motions. Finally, Arias argues that the District Court erred by refusing to grant his attorney’s request, made shortly before the trial began, for a continuance.

A.

We start with the first of the four pre-trial rulings that Arias challenges: the District Court’s denial of Arias’s motion for a Franks hearing to “test the veracity of’ Detective Gecoya’s affidavit in applying for the warrant to place the GPS tracker on the Murano. United States v. Tanguay, 787 F.3d 44, 48 (1st Cir. 2015) (citing Franks, 438 U.S. at 155-56, 98 S.Ct. 2674). If a defendant, by a preponderance of the evidence, shows at a Franks hearing that an affidavit in a warrant application contains false statements or omissions, made intentionally or with reckless disregard for the truth, and that a finding of probable cause would not have been made without those false statements or omissions, then the defendant is entitled to the suppression of evidence obtained under that warrant. Id. at 49.

A defendant is entitled to a Franks hearing, however, only if he first makes a “substantial preliminary showing” of the same two requirements that he must meet at the hearing — that “a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth” and that the false statement or omission was “necessary to the finding of probable cause.” United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015) (quoting United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)). In considering a district court’s decision to deny a Franks hearing, we review factual determinations for clear error and the probable cause determination de novo. Tanguay, 787 F.3d at 49-50. Applying these standards, we find no error in the District Court’s determination that Arias did not make the necessary preliminary showing as to the first requirement — that the false statement was made knowingly and intentionally or with reckless disregard for the truth.

Arias bases his challenge to the denial of his request for a Franks hearing on the false statement in the affidavit that identifies Rodriguez as “Sarnie,” the driver of the Murano, a vehicle that was surv-eilled at the scene of a drug transaction. In fact, “Sarnie” was Arias and not Rodriguez,. and the person driving the car at that time was Bryan Gonzalez, otherwise known as “Chicken Legs.” The false statement thus had the effect of equating— wrongly — Rodriguez and “Sarnie” and thereby using Rodriguez to tie the Murano to “Sarnie’s” suspected drug trafficking.

Arias contends Detective Gecoya made this false statement with reckless disregard for the truth. “Recklessness may be inferred ‘from circumstances evincing obvious reasons to doubt the veracity of the allegations.’ ” United States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002) (quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984)). Arias argues that the affidavit itself reveals obvious reasons to doubt the veracity of the identification of the driver of the Murano as Rodriguez. The affidavit describes a series of phone calls and text messages between Melchion-da and the user of “Target Telephone #5,” who was referred to in the phone calls as “Sarnie,” arranging a meeting for a drug transaction. Arias contends that the description of the recorded communications in the affidavit indicates that the user of Target Telephone #5 would be sending someone else to the transaction, rather than going himself.

The District Court reasonably determined, however, that Gecoya’s “apparent surmise that the registered owner of the vehicle [Rodriguez] was the driver was not inherently implausible.” While the affidavit notes' that the user of Target Telephone #5 stated that he planned to call Melchionda to set up a time for the transaction after he met with Chicken Legs and after Chicken Legs left, the affidavit does not indicate that Chicken Legs, rather than the user of Target Telephone #5, would be going to the transaction. The record instead reveals a series of increasingly detailed phone calls between the user of Target Telephone #5 and Melchionda regarding the time and place for the transaction. The record in this respect supports the inference that the user himself was going to the transaction. Because “ ‘[m]ere inaccuracies, even negligent ones, are not enough’ to warrant a Franks hearing,” United States v. Santana, 342 F.3d 60, 66 (1st Cir. 2003) (quoting United States v. Adams, 305 F.3d 30, 36 n.1 (1st Cir.

B.

We now take up Arias’s challenge to the District Court’s denial of Arias’s motion to suppress testimony related to the two traffic stops of the Murano, on July 24, 2013 and August 6, 2013. The parties agree that, under the Fourth Amendment, a short investigative vehicle stop requires that the officers executing the stop have “reasonable suspicion to believe that criminal activity ‘may be afoot.’ ” United States v. Wright, 582 F.3d 199, 205 (1st Cir. 2009) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). A finding of reasonable suspicion must be “grounded in specific and articulable facts.” Id. (quoting United States v. Espinoza, 490 F.3d 41, 47 (1st Cir. 2007)). These facts must amount to “more than a mere hunch but less than probable cause.” Id. (quoting United States v. Ruidiaz, 529 F.3d 25, 29 (1st Cir. 2008)).

In his motion to suppress, Arias contended that the officers who made the stops, directed by Detective Gecoya, did not on either of the occasions at issue have reasonable suspicion to pull over Arias while he was driving the Murano. The District Court held an evidentiary hearing on the matter and ruled against Arias. In reviewing a challenge to a district court’s denial of a suppression motion, “we review the district court’s findings of fact and credibility determinations for clear error. ... However, we review de novo the district court’s conclusions of law, including its application of the law to the facts.” United States v. Camacho, 661 F.3d 718, 723-24 (1st Cir. 2011) (citation omitted).

We start by noting that it is undisputed that Detective Moynihan and Officer Cabral executed the stops at the direction of Detective Gecoya. Thus, if Gecoya had the requisite reasonable suspicion, it may be imputed to the officers executing the stop. See United States v. Barnes, 506 F.3d 58, 63 (1st Cir. 2007) (“[R]easonable suspicion can be imputed to the officer conducting a search if he acts in accordance with the direction of another officer who has reasonable suspicion.”).

As to the traffic stop on July 24, Arias concedes that Detective Gecoya may have had reasonable suspicion that the Murano was involved in criminal activity. Arias nonetheless contends that Detective Geeo-ya did not have the reasonable suspicion that was required — “reasonable suspicion of Mr. Arias being involved with criminal activity.” We do not agree, even if we were to assume that Detective Gecoya’s reasonable suspicion that the car was involved in criminal activity would be insufficient to support a brief stop of the car.

The record shows that, on June 11 and June 12, Gecoya observed a person driving the Murano in the course of participating in what Gecoya believed to be, on the basis of wiretaps, drug transactions with another target of the investigation. And, on July 11, Gecoya determined, based on the driver’s license provided to him by the towing company, that the person whom task force members had observed driving the Murano on June 11 and June 12 was, in fact, Senny Arias. Gecoya then observed Arias on July 23 behind the wheel of the Murano at a McDonald’s and acting in a manner consistent with his participation in a drug transaction. These facts suffice to support a particularized and objective basis for Gecoya’s suspicion both that Arias was involved in criminal activity and that he was driving the Murano at the time of the stop. See United States v. Arnott, 758 F.3d 40, 44 (1st Cir. 2014) (finding that extended monitoring of a suspect, with surveillance and recorded phone calls, that reveals a pattern consistent with repeated drug deals provides reasonable suspicion for a traffic stop).

As to the traffic stop on August 6, the District Court’s ruling is also clearly right. Gecoya by then had all the information that he had at the time of the July 24 stop. But he also had more. Surveillance of the Murano undertaken on August 6, but prior to the stop, revealed a pattern of behavior consistent with further drug deals. Gecoya thus also had reasonable suspicion to request the stop on August 6.

C.

Next, Arias contends that the District Court erred in denying his motion for leave to file a motion to suppress wiretap evidence. The District Court based that ruling on its determination that the motion was filed after the deadline that the District Court had set for the filing of suppression motions.

We review the denial of a motion for leave to file a motion after a deadline for abuse of discretion. United States v. Santos Batista, 239 F.3d 16, 20 (1st Cir. 2001). A district court should, under Rule 12 of the Federal Rules of Criminal Procedure, grant leave to file an untimely motion “for cause,” which we have interpreted to mean “where there is a showing of cause and prejudice.” Id at 19.

The issue arises in the following way. Initially, Edward Lee was appointed as Arias’s attorney, but on February 13, 2015, Lee withdrew and Eric Tennen was appointed as Arias’s new attorney. On February 24, the District Court set out a pretrial schedule that required that suppression motions be filed by March 17, 2015. The District Court then extended that deadline on March 17 to April 6.

On April 6, Arias filed the two suppression motions that we have already discussed, the first of which concerned the evidence acquired from the GPS tracking device and the second of which concerned the evidence acquired from the two vehicle stops. But, then, on April 30, Arias filed a motion for leave to file a third motion to suppress — this one targeting the wiretap evidence. In that motion, Tennen stated that the basis for this suppression motion had not become clear to him until April 25, when Arias and Tennen met and discussed the wiretap evidence. At a hearing on May 6, the District Court denied this third suppression motion because it had been filed more than two weeks after the previously imposed deadline for making such a filing.

Arias at no point indicated to the District Court what the grounds for this third motion were. Nor does he describe those grounds on appeal. Arias thus does not show any prejudice from its denial. He therefore cannot show that the District Court abused its discretion in enforcing the deadline that it had set. See United States v. Williams, 630 F.3d 44, 49 (1st Cir. 2010) (“[Sjpeculation about what assistance [a document not in the record] might have rendered to his defense falls hopelessly short of establishing, as he must, a likelihood of prejudice.”).

D.

The last of Arias’s challenges to the District Court’s pre-trial rulings concerns the District Court’s denial of Arias’s motion for a continuance of the trial just prior to the trial’s start. We set forth the relevant'facts in brief.

Trial was set to begin on March 2, 2015. On February 17, Tennen, who we have noted was appointed as Arias’s second attorney on February 13, 2015, filed Arias’s motion to continue the trial, to which the government assented. In an affidavit attached to that motion, Tennen stated that he was scheduled to be in trial on a separate matter from February 18, 2015, until March 13, 2015. The District Court continued the trial until May 21, 2015. On May 4, however, Tennen filed an unopposed motion by Arias to continue the trial again, this time requesting a start date of June 30, 2015. It is the denial of this second motion to continue the trial that is at issue on appeal.

In the affidavit accompanying the second motion for a continuance, Tennen stated that, in a conversation with Arias on April 25, 2015, Tennen learned information that provided the basis for him to file a motion to suppress the- evidence obtained from the wiretap and that he needed the extra time to prepare that motion. Tennen also stated that he had been unable to prepare adequately for trial due to the large volume of discovery involved, the time that he had to spend to prepare the two suppression motions that he had already filed, and his other obligations.

We review a denial of a motion for a continuance of trial for abuse of discretion. United States v. Rosario-Otero, 731 F.3d 14, 18 (1st Cir. 2013) (citing United States v. Fink, 499 F.3d 81, 89 (1st Cir. 2007)). In reviewing such a decision, we consider a number of factors, including “the likelihood of injustice or unfair prejudice resulting from the denial of a continuance.” United States v. Delgado-Marrero, 744 F.3d 167, 196 (1st Cir. 2014). “We consider this final factor to be essential, overturning the denial of a continuance only when the movant identifies specific, concrete ways in which the denial resulted in ‘substantial prejudice’ to his or her defense.” Id. (citations omitted).

Arias fails to support his challenge with an adequate showing of prejudice. He argues first that, if the District Court had continued trial, then Tennen would have filed a motion to suppress evidence from the wiretap béfore the deadline. But, as we have already noted, Arias does not now explain to us what the basis for that motion would have been and thus how his claimed inability to prepare it prejudiced him.

Arias also contends that, if the District Court had granted the continuance, Ten-nen would have prevented the jury from hearing evidence that the District Court later instructed the jury to disregard. That evidence was the testimony by Sergeant James Picardi, an officer with the Revere, Massachusetts Police Department, that the phone that Arias was carrying on his person at the time he was arrested had a particular phone number that had been tapped by the government in the course of its investigation of Melchionda.

The problem for Arias is that the District Court did ultimately exclude the evidence. Moreover, in doing so, the District Court issued a curative instruction to the jury to disregard it. As a general matter, “appellate courts inquiring into the effectiveness of a trial judge’s curative instructions should start with a presumption that jurors will follow a direct instruction to disregard matters improvidently brought before them.” United States v. Sepúlveda, 15 F.3d 1161, 1185 (1st Cir. 1993). Arias makes no showing, however, that rebuts that presumption. Thus, even if we were to assume that the ultimately stricken testimony might not have been heard by the jury at all if Arias’s attorney had more time to prepare the case, Arias has not shown how the denial of the motion to continue the trial prejudiced him.

Finally, Arias claims prejudice by pointing to a police report that was introduced into evidence at trial and that Arias contends contained exculpatory evidence re-' garding the weight of the drugs recovered in an apartment in which he lived. Arias acknowledges that Tennen, his attorney, was able to rely on this report in cross-examining a witness that the government called at trial about the weight of the drugs recovered. Arias contends that if the continuance had been granted, Tennen would have been able to identify the discrepancy in time to cross-examine the witness regarding the police report immediately after the direct examination, rather than only on recall. Arias does not explain, however, how the fact that Tennen could examine the witness only on recall prejudiced him. Thus, Arias does not show the prejudice that he is required to show in order to prevail in his challenge to the District Court’s decision to deny the motion to continue the trial.

III.

Having addressed each of Arias’s claims of pre-trial error, we now turn to his contention that the District Court made erroneous rulings at trial as well, and that these errors also require his convictions to be reversed. In particular, Arias contends that the District Court erred in admitting evidence related to a phone call in which Melchionda stated that he received regular deliveries of heroin from Arias, and that the District Court erred in denying Arias’s motion for a mistrial. We find no error on either count.

A.

Prior to trial, Arias moved to exclude a statement made on a recording of a phone conversation between Melchionda and an unidentified person on the ground that the statement was inadmissible hearsay. The government contended that, under Federal Rule of Evidence 801(d)(2)(E), the statement was not inadmissible because it was made by a co-conspirator, Melchionda, in furtherance of the drug trafficking conspiracy. Arias argued that the statement was not made in furtherance of the conspiracy.

In order to admit a statement under Rule 801(d)(2)(E), a district court must conclude, by a preponderance of the evidence, that the “declarant and the defendant were members of the same conspiracy and that the statement was made in furtherance of the conspiracy.” United States v. Paz-Alvarez, 799 F.3d 12, 29 (1st Cir. 2015). Here, the statement at issue was the one that Melchionda made to the unidentified person that Melchionda gets “40 bags from Senny every other day.” That statement was made during a conversation in which Melchionda and the unidentified person discussed the pricing, supplying, and selling of heroin. The District Court concluded that the statement was made in furtherance of the conspiracy, stating that, “like any other business, people engaged in this business, it is helpful to them, it furthers their business to understand what others in competing businesses are doing. Again, like a Ford dealer sharing notes with a Chevy dealer or perhaps two Ford dealers sharing notes, I do think it furthers the conspiracy.”

We review a District Court’s decision to admit a statement under Rule 801(d)(2)(E) either for clear error, see Paz-Alvarez, 799 F.3d at 29, or for an abuse of discretion, see United States v. Colón-Díaz, 521 F.3d 29, 36 (1st Cir. 2008). We need not determine which standard applies because, even under the more defendant-friendly standard — abuse of discretion — the challenge fails.

Arias argues that Melchionda did not make the statement in furtherance of the conspiracy, because “[t]here was nothing in the call which indicated ... that Melchionda was attempting to do business with [the unidentified caller],” and the call reflected merely “friends in the same business making idle conversation.” But we have made clear that “a statement need not be necessary or even important to the conspiracy ... as long as it can be said to advance the goals of the conspiracy in some way.” United States v. Martínez-Medina, 279 F.3d 105, 117 (1st Cir. 2002). And here, the District Court reasonably concluded that, in the recorded phone conversation, Melchionda traded information about the drugs that he received from Arias for information from an associate who was also in the heroin business and that this information would help Melchionda in running the heroin trafficking business that was the subject of the indictment. Thus, it was reasonable for the District Court to conclude that the statement regarding Arias was made in furtherance of the conspiracy.

B.

Next, Arias contends that the District Court erred in failing to declare a mistrial after the jury was improperly exposed to evidence regarding the phone number of the phone that was on Arias’s person when he was arrested. That phone number is significant because it connected Arias to multiple recorded phone calls in which drug transactions were discussed.

“When reviewing the denial of a motion for a mistrial, we consider the totality of the circumstances to determine whether the defendant has demonstrated the kind of clear prejudice that would render the court’s denial of his motion for a mistrial a manifest abuse of discretion.” United States v. Pagán-Ferrer, 736 F.3d 573, 586 (1st Cir. 2013) (citation omitted). In determining whether a District Court abused its discretion in denying a motion for a mistrial, we look at three factors: “1) whether an appropriate curative instruction was issued, 2) whether the judicial response was timely, and 3) whether appellants successfully rebutted the presumption that the jury followed the judge’s instructions.” Id.

The District Court determined that the jury had been improperly exposed to evidence regarding the phone number. The District Court made that determination because, after the evidence was introduced, it came to light that the government’s warrant application for the search of the phone to determine its phone number had failed to disclose that the government had already executed the search prior to filing the warrant application. Nonetheless, the District Court gave a curative instruction, which directed the jury to disregard the exhibits and the testimony that indicated what the actual number of the phone was. Thus, Arias’s contention that the instruction was inadequate because it focused only on the exhibits — and not the testimony — rests on a mistaken premise. Moreover, the District Court gave the instruction the day after the jury had been exposed to the . excluded evidence, which we have previously held to be sufficiently timely. See Pagán-Ferrer, 736 F.3d at 586-87. Because Arias does not offer any argument to overcome the presumption that the jury followed the judge’s instruction to disregard the evidence at issue, we find no abuse of discretion in the District Court’s decision not to declare a mistrial.

IV.

Finally, Arias challenges his sentence. As we have noted, at sentencing, the District Court determined that Arias was responsible for trafficking between 400 grams and 700 grams of, heroin. That determination in turn formed the basis for the District Court’s calculation of the applicable sentencing guidelines range, which the District Court relied upon in setting the sentence of 66 months’ imprisonment.

“We review a district court’s factual findings regarding drug quantity for clear error.” United States v. Mullins, 778 F.3d 37, 42 (1st Cir. 2015). We find none. The District Court based the drug quantity determination on the following findings: that Arias had 22.4 grams of heroin on his person when he was arrested (which Arias does not dispute); that 30.9 grams were found in Arias’s apartment in the initial search; that 163.1 grams were found in Arias’s apartment in a subsequent search; that Arias trafficked 302.4 grams in the nine weeks from June 15, 2013 to August 15, 2013, based on an estimated trafficking volume of 120 bags per week; and that Arias trafficked 178 grams in the 20 weeks between January 24, 2013 and June 7, 2013, based on an estimated trafficking volume of 30 bags per week.

The District Court did not clearly err in attributing to Arias the heroin — totaling 30.9 grams — found in the first search of Arias’s apartment. As we have explained before, “ ‘possession’ includes ... joint as well as exclusive possession. The location of drugs or firearms in a defendant’s home or car is a common basis for attributing possession to the defendant. This is so even if the residence or room is shared by others.” United States v. Zavala Maldonado, 23 F.3d 4, 7 (1st Cir. 1994). And here, the record shows that officers tracked Arias driving the Murano to and from the apartment that he lived in before and after drug transactions.

The District Court also did not clearly err in attributing to Arias the heroin — totaling 163.1 grams — found in the second search of the apartment. Arias argues that a co-conspirator had access to the apartment and could have moved drugs to the apartment after Arias’s arrest. But the District Court was entitled to conclude, as the government contended, that it was implausible that a co-conspirator would choose to store drugs in the now-vacant apartment of a co-conspirator who had just been arrested.

Arias next challenges the District Court’s decision to attribute 302.4 grams to him for the nine-week period from June 15 to August 15. The District Court reached this figure by determining that Arias trafficked 60 bags, twice a week, at a weight of 0.28 grams of heroin per bag, over nine weeks. Arias contends that the District Court’s calculation should have been based only on the thirteen drug transactions that appear on the record, which Arias argues involved an average quantity of 40 bags per transaction, with each bag having an average weight of 0.25 grams. But, “[d]rug -quantity findings may be based on approximations as long as those approximations represent reasoned estimates of drug quantity.” Mullins, 778 F.3d at 42 (citation omitted). And here, the District Court reasonably found that Arias engaged in two transactions per week from June 15 to August 15 involving 60 bags for each transaction. The District Court sup-portably based that finding on the PSR, which in turn based this estimate on a post-arrest estimate by Melchionda of how much heroin he purchased from Arias and on the content of intercepted phone calls and text messages from Arias. The District Court also reasonably concluded that 0.28 grams per bag was an appropriate average weight, because that was the average weight of the bags that were seized by the government. Thus, the District Court reasonably attributed 302.4 grams to Arias for the period between June 15 and August 15.

If the 302.4 grams are added to the 22.4 grams of heroin found on Arias’s person when he was arrested, the 30.9 grams of heroin found in the first search of the apartment, and the 163.1 grams of heroin found in the second search of the apartment, the total quantity of heroin attributable to Arias is 518.8 grams. Because this amount is above the 400-gram threshold, we need not consider Arias’s challenge to the quantity of drugs attributed to him for the period before June 15. But we do not find any clear error by the District Court with respect to its finding in that regard either.

The District Court reasonably estimated that over the twenty weeks between January 24 and June 7, Arias sold 60 bags per week, with a weight of 0.28 grams per bag, for a total of 336 grams. See United States v. Cintron-Echautegui, 604 F.3d 1, 7 (1st Cir. 2010) (a sentencing court may make “plausible extrapolations from the available information”). The District Court based this estimate on the fact that the evidence showed that there were 598 phone calls between Melchionda and Arias during that period of time. While these calls were not recorded, the District Court reasonably concluded that they constituted evidence of drug transactions because all of the phone calls between Melchionda and Arias that were recorded after June 15, once the wiretap became active, were drug-related. For the sake of being “extremely conservative,” the District Court then — again, quite reasonably — halved that estimate to 178 grams. That estimate assumes a volume of 30 bags per week, an amount significantly lower than the 120 bags per week that the District Court determined that Arias sold after June 15. See United States v. Rodríguez, 731 F.3d 20, 32 (1st Cir. 2013) (“We have often upheld drug-quantity findings, even if imprecise, if they were based upon conservative estimates or favorable assumptions.”).

In sum, the District Court’s findings more than suffice to justify its determination that Arias was responsible for conspiring to distribute between 400 grams and 700 grams of heroin. Arias’s challenge to his sentence therefore fails.

y.

For the foregoing reasons, we affirm.

      . Because Arias does not contest the sufficiency of the evidence presented against him, we narrate the facts in a "balanced way, without favoring either side.” United States v. Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014) (stating that the "balanced-presentation approach” is an acceptable option where the sufficiency of the evidence is not challenged).

      . On April 6, 2015, Arias filed a pre-trial motion to suppress the evidence from the GPS tracking unit on the Murano on the ground that the warrant application filed by Detective Gecoya to place that device on that car relied on an affidavit by Gecoya that included a false statement (the identification of Rodriguez) made with reckless disregard for the truth. At a colloquy with the defense counsel concerning this motion, the District Court interpreted this motion to be a motion for a Franks hearing and then denied it. It is the denial of the motion — as so characterized— that Arias appeals.

      . In Santos Batista, we cited to Rule 12(f) as the standard that a district court applies in granting leave to file untimely motions to suppress. After that case, the language in Rule 12(f) was moved to Rule 12(e), and then to Rule 12(c)(3). However, the standard remains the same. See Fed. R. Crim. P. 12 advisory committee’s notes to 2014 amendments ("New paragraph 12(c)(3) retains the existing standard for untimely claims. The party seeking relief must show ‘good cause' for failure to raise a claim by the deadline, a flexible standard that requires consideration of all interests in the particular case.”).


source: Caselaw Access Project

author: LIPEZ, Circuit Judge.

license: Public Domain

text:
    Veronica Carmela Cortez CARDONA, a/k/a Veronica Del Carmen Cortez, Petitioner, v. Jefferson B. SESSIONS, III, United States Attorney General, Respondent.
    No. 15-2095
    United States Court of Appeals, First Circuit.
    February 17, 2017

      Hans J. Bremer and Bremer Law & Associates, LLC on brief for petitioner.
    Benjamin C. Mizer, Principal Deputy Assistant Attorney General, U.S. Department of Justice, Civil Division; Anthony Nicastro, Acting Assistant Director, Office of Immigration Litigation; and Joanna L. Watson, Trial Attorney, Office of Immigration Litigation, Civil Division, on brief for-respondent.
    Before THOMPSON, SELYA, and LIPEZ, Circuit Judges.

       Pursuant to Fed. R. App. P. 43(c)(2), U.S. Attorney General Jefferson B. Sessions, III, has been substituted for U.S. Attorney General Loretta E. Lynch as respondent.

   LIPEZ, Circuit Judge.

The petitioner, Veronica Carmela Cortez Cardona (“Cortez”), a native and citizen of Guatemala, seeks review of a decision from the Board of Immigration Appeals (“BIA” or “Board”) denying her motion to reopen an appeal challenging an immigration judge’s (“IJ”) decision to reject her request for asylum and withholding of removal pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231(b)(3). Under the deferential standard of review accorded to the BIA’s decision to reject a motion to reopen and reconsider its own proceedings, we deny her petition.

I.

Cortez arrived in the United States without proper entry documentation on April 17, 2013. During the following month, the Department of Homeland Security served her with a Notice to Appear (“NTA”) before an IJ, alleging that she failed to possess a valid travel document at her time of entry into the United States in violation of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I).

In a July 2013 written pleading', Cortez admitted the factual allegations and the removal charge alleged in her NTA and filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Cortez’s asylum application recounted an emotionally, physically, and sexually abusive relationship with a man whom she had dated in Guatemala named Juan Carlos. She testified before the IJ that her relationship with Juan Carlos went well for a few months after they first began dating, but eventually Juan Carlos introduced Cortez to his many friends who were gang members and attempted to recruit her into his gang. After rebuffing these efforts, her relationship with Juan Carlos quickly crumbled, and he became abusive. In order to escape Juan Carlos’s physical and sexual violence, she made arrangements to travel to the United States. Cortez asserted before the IJ — and continues to maintain here — that she is eligible for asylum based upon a fear of persecution due to her “membership in a particular social group.” 8 U.S.C. § 1158(b)(l)(B)(i). She proposed two potential social groups in her hearing before the IJ- — “Guatemalan women who have been involved intimately with Guatemalan male companions who believe that women are to live under male domination” and “women in domestic relationships who are unable to leave.”

Providing three reasons for his decision rejecting her application for relief, the IJ first cited inconsistencies between Cortez’s testimony and statements she had made to border agents, and concluded that her testimony about her abusive relationship with Juan Carlos was not credible. Second, the IJ stated that even if Cortez’s testimony was credible, her proposed social groups were not cognizable under the INA because the statute requires such a group “be sufficiently particular to permit an accurate separation of members from nonmembers” and an “objective observer would not reliably [be able to] gauge who is or who is not a member of the group[s]” proposed by Cortez. Finally, the IJ noted that internal relocation in Guatemala remained a “significant possibility” for Cortez.

Cortez appealed the IJ’s denial to the BIA. In its June 2015 decision, the Board chose not to address the IJ’s determination as to Cortez’s credibility or her ability to relocate internally in Guatemala. Moreover, the BIA did not adopt the IJ’s determination that Cortez failed to define a cognizable social group under the INA. Rather, the BIA acknowledged that in one of its recent decisions, Matter of A-R-CG-, the Board held that, depending upon the circumstances of an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable social group under the act.” 26 I. & N. Dec. 388, 392 (BIA 2014). Ignoring the obvious fact that Cortez was not married to Juan Carlos, the BIA stated that “the respondent and her boyfriend had not established a domestic relationship, and the respondent has limited knowledge about her former boyfriend’s life.” [Id.] The BIA thus concluded that “the respondent has not shown that' she was in a domestic relationship and does not fit within the particular social group that she claims.” As a result, the BIA upheld the IJ’s denial and dismissed Cortez’s appeal.

Cortez next filed a timely motion requesting that the Board reopen and reconsider her appeal, insisting the BIA committed three distinct legal errors. First, she argued that it was improper for the BIA to cite Matter of A-R-C-G- in its decision because that case was decided after she had submitted her appeal brief. Second, even if the BIA appropriately cited Matter of A-R-C-G-, she should have been allowed to submit a brief in response to that decision in order to present a full argument to the Board. Finally, she contended that the BIA erred when it decided she was not in a “domestic relationship” with her boyfriend, Juan Carlos. The BIA rejected Cortez’s arguments and denied her motion to reopen and reconsider. This timely petition for review of the Board’s decision against reopening and reconsideration followed.

II.

We review the denial of a motion to reopen and reconsider for abuse of discretion. Martinez-Lopez v. Holder, 704 F.3d 169, 171 (1st Cir. 2013). “This is a deferential standard, and we will find an abuse of discretion only when the ‘denial was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.’ ” Id. at 172 (quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003)).

Cortez presses before us the three legal arguments she advanced in her motion to reopen. We address each in turn.

A.The BIA’s Reliance upon Matter of A-R-C-G-

Cortez urges that, “[i]n the interests of equity and fairness,” the BIA should not be permitted to cite a case in its decision denying her appeal from the IJ that was decided after she submitted her brief to the Board. In its denial of the motion to reopen and reconsider, the BIA noted that its Practice Manual provides an opportunity for parties to file a supplemental brief if the party discovers new authority that creates a change in the law. Cortez contends that her counsel did not discover Matter of A-R-C-G- before her appeal was decided, and it cannot “be reasonably expected that in the dynamic and ever changing area of immigration law, a party’s counsel will always be immediately apprised of every new authority that arises shortly after a brief has been submitted with the Board.”

We disagree. It is counsel’s role to be alert to changes in the law. See United States v. Gonzalez Vargas, 585 F.2d 546, 547 (1st Cir. 1978) (per curiam) (“It is the responsibility of counsel to keep abreast of the law and to inform the court of the correct state of the law.”). Not only was the BIA acting well within its broad discretion in citing Matter of A-R-C-G-when it reviewed the IJ’s decision, its failure to consider such an important and relevant intervening decision could, itself, be grounds for remand from this court. See Kadri v. Mukasey, 543 F.3d 16, 22 (1st Cir. 2008) (remanding case to the IJ to evaluate petitioner’s claim in light of intervening case law).

B. The BIA’s Refusal to Allow Further Briefing

Even if the BIA could have properly cited Matter of A-R-C-G- in its decision, Cortez argues that it improperly denied her request to submit additional briefing in response to her motion to reopen and reconsider. She further asserts that the “severe time constraints” placed upon her for filing a timely motion to reconsider prevented her from fully briefing the matter and “[a]ffording more time would not have placed a burden on the BIA.”

Perhaps not, but the Board had no obligation to permit further briefing. Also, in rejecting Cortez’s argument, the Board explained that Cortez had set forth her Matter of A-R-C-G-contention in her motion to reopen and reconsider, and it was willing to reconsider that argument sua sponte, without the benefit of further briefing. There was no abuse of discretion in the Board’s decision to consider Cortez’s argument on the basis of the papers before it.

C. The BIA’s Cognizable Social Group Analysis

In challenging the BIA’s reconsideration of her Matter of A-R-C-G- argument, Cortez insists that the BIA erred by narrowly focusing on the fact that she was not married to her abusive boyfriend and thus did not fit within the particular social group defined in Matter of A-R-C-G-. Cortez misconstrues the Board’s decision.

In its initial decision the Board acknowledged that Matter of A-R-C-G- recognized “married women in Guatemala who are unable to leave their relationship” as a particular social group potentially eligible for asylum under the INA. 26 I. & N. Dec. at 392. However, the Board did not state that Cortez had to fit within that same social group of married women. To the contrary, it focused on the domestic relationship issue, and it concluded that Cortez had not demonstrated factually that she fit within her own proposed social groups— “Guatemalan women in domestic relationships who are unable to leave” or “women who are viewed as property by virtue of their positions within a domestic relationship.”

In reconsidering that conclusion in response to Cortez’s motion to reopen, the Board elaborated on its position:

The respondent was not in a “domestic relationship.” The word “domestic” is defined at http://dictionary.reference. com as “of or relating to the home, the household, household affairs, or the family[,]” or as “devoted to home life or household affairs.” The respondent testified that she dated Juan Carlos happily for 3 months and did things like going to the park and getting ice cream. After dating for 3 months, he introduced her to some of the members of the gang to which he belonged, and asked her to be his woman and belong to the gang. She refused his offer. The respondent was never in a “domestic” relationship with Juan Carlos.

The record amply supports this determination by the Board. Hence, the BIA did not abuse its discretion when it denied Cortez’s motion.

For the forgoing reasons, the petition is dismissed.

      . On appeal to the BIA, Cortez refined these two potential social groups to "women who are viewed as property by virtue of their positions within a domestic relationship" and "Guatemalan women in domestic relationships who are unable to leave.”

      . The BIA noted that even though Cortez testified she dated her boyfriend for six months, she did not know his last name, where he lived, or his birthday and that she did not know anything about his immediate family.

      .Cortez’s motion to reopen and reconsider only addressed the BIA’s decision on her application for asylum and withholding of removal. She did not seek review of the BIA’s denial of her application for CAT protection. Hence, we do not consider that issue here.

      . Cortez's petition asks us only to reexamine the Board’s decision denying her motion to reopen and reconsider her case. She does not seek and we do not review the BIA’s initial dismissal of her appeal.

      . By choosing to focus on the domestic relationship issue rather than the absence of Cortez’s marital relationship, the BIA adds to the ongoing debate about the scope of Matter of A-R-C-G-. In at least two unpublished decisions from earlier in 2015, the BIA categorically stated that marital status should not be the determinative factor in deciding a domestic violence asylum claim. See Matter of D-M-R-, 3 (BIA June 9, 2015), https://www. scribd.com/documen1/271354416/D-M-R-BIA-June-9-2015 (last visited Feb. 16, 2017); Matter of E-M-, 1 (BIA Feb. 18, 2015), https:// www.scribd.com/document/271353122/E-M-BIA-Feb-18-2015 (last visited Feb. 16, 2017); see also Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair Application of the Law, 22 Sw. J. Int'l L. 1, 14 & n.55 (2016). In a third unpublished decision from 2015, the BIA noted that it was proper for an IJ to attach "some significance” to the absence of a marital relationship in denying an applicant's request for asylum, though it also reiterated its previous position that marital status is not necessarily determinative. Unpublished BIA Decision, 3 (BIA July 28, 2015) (available as Case No. 11018 in the Center for Gender and Refugee Studies database at the University of California Hastings College of Law); see also Bookey at 14 & n.56. However, the applicant in that case filed a motion to reconsider, and upon further review the Board reversed its initial decision, stated that it was not proper to consider marital status in the analysis, and remanded the case to the IJ for further proceedings. Unpublished BIA Decision, 1 (BIA Nov. 9, 2015) (available as Case No. 11018 in the Center for Gender and Refugee Studies database at the University of California Hastings College of Law). Because unpublished BIA decisions carry no precedential value, practitioners and scholars have urged the Board to publish more decisions on the domestic relationship issue to provide additional clarity for IJs. See, e.g., Sital Kalantry & Carolyn Wald, Asylum for Domestic Violence Survivors: Immigration Advocates Urge Board of Immigration Appeals to Publish More Precedent Cases, Catholic Legal Immigration Network, Inc. (Mar. 1, 2016), https:// cliniclegal.org/news/asylum-domestic-violence-survivors-immigration-advocate-urges-board-immigration-appeals-publish (last visited Feb. 16, 2017).

      . Before us, Cortez has argued that the proper cognizable social group to consider should be “women, married or unmarried, in Guatemala who are unable to leave their relationship.” This description, which avoids using the term “domestic relationship,” is similar to a social group Cortez proposed to the IJ, but it represents a different proposed social group from those she pressed before the BIA. Hence, Cortez may not propose this social group in a petition for review, since she "failed to exhaust this claim before the agency.” Pheng v. Holder, 640 F.3d 43, 47 n.4 (1st Cir. 2011) (citing 8 U.S.C. § 1252(d)(1)).


author: POOLER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Christopher BARRET, D/B/A Derrick Brown, A/K/A Sean Brown, A/K/A Mouthy, A/K/A The General, A/K/A Chris, A/K/A Solo, Omar Mitchell, A/K/A Sox, Leon Scarlett, A/K/A Agony, A/K/A Piggy, Defendants-Appellants.

    Docket Nos. 12-4663(L), 13-3800, 14-573, 14-2014

    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: January 6, 2016
    Decided: February 15, 2017

      JAMES M. BRANDEN, New York, NY, for- Defendant-Appellant Christopher Barret.
    MICHAEL H. SPORN, New York, NY, for Defendant-Appellant Omar Mitchell.
    PETER TOMAO, Garden City, NY, for Defendant-Appellant Leon Scarlett.
    TYLER J. SMITH, Assistant United States Attorney (Amy Busa, Peter A. Nor-ling, Assistant United States Attorneys, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, New York, NY, for Appellee.
    Before: POOLER, HALL, and CARNEY, Circuit Judges.

      . The Clerk of Court is respectfully directed to amend the caption as above.

      . 12-4663 was determined by an order filed on April 18, 2014.

   POOLER, Circuit Judge:

Appeal from the judgment of the United States District Court for the Eastern District of New York (Matsumoto, J.) convicting Christopher Barret, Omar Mitchell, and Leon Scarlett of conspiracy to distribute and possess with intent to distribute in excess of 1,000 kilograms of marijuana. This opinion addresses two arguments raised by appellants: whether (1) the district court erred in admitting the testimony, of Kareem Forrest, a former co-defendant who switched his plea to guilty and agreed midtrial to cooperate with the gov-eminent, and testify against the remaining eo-defendants; and (2) the quantity of marijuana attributed to Mitchell is supported by the evidence.

We join our sister Circuits in finding the testimony of a former codefendant who pleads guilty during trial, and then agrees to testify as a government witness at that same trial, is admissible so long as the district court takes steps to avoid undue prejudice to the remaining defendants. See, e.g., United States v. Olson, 450 F.3d 655 (7th Cir. 2006). These steps include limiting testimony to events other than the witness’s involvement in joint defense planning and properly instructing the jury regarding the changed circumstances.

We also hold that the evidence adduced at trial was sufficient to permit the jury to conclude that Mitchell knowingly joined a conspiracy to distribute more than 1,000 kilograms of marijuana, and that such an amount was reasonably foreseeable to him. Appellants’ remaining arguments are addressed in a summary order issued simultaneously with this opinion.

BACKGROUND

I. The Investigation

This case developed from a joint investigation by the United States Postal Inspection Service, the Drug Enforcement Administration (“DEA”), and the New York City and New York State Police Departments, into the activities of a large-scale marijuana distribution organization in Queens, New York known as the “Fatherless Crew.” The government alleged, and as outlined below the evidence at trial demonstrated, that the Fatherless Crew acted as wholesalers for New York-based drug dealers, with the drugs shipped from suppliers in Arizona and California via the United States Postal Service. Barret headed the Fatherless Crew; Scarlett served primarily as an enforcer for Barret; and Mitchell served as a lookout who, from time to time, also sold drugs.

The Fatherless Crew is alleged to have run its operation out of the Barret residence in Jamaica, Queens, one other residential property, and several commercial mail receiving agencies (“CMRAs”) located in Queens. Arizona police officers contacted the Postal Inspection Service in Arizona after observing a subject in a narcotics investigation mail three packages. The packages were set aside, and a drug-sniffing dog gave positive alerts to the packages, an indication that the packages contained contraband. After making inquiries, a postal inspector determined that while the addresses on the packages were valid, the names on the packages were not the names associated with those addresses. The postal inspector obtained search warrants, opened the packages and ultimately seized 17.51 kilograms of marijuana from the three packages. After the seizure of the boxes in Phoenix, investigators used mail records to track certain parcels from Arizona to several CMRAs in Flushing, New York. Investigators also conducted surveillance of the locations where the packages were delivered, including Bar-ret’s residence, which was monitored via a video camera mounted to a utility pole.

On July 27, 2010, investigators observed Mitchell walking back and forth between the front of the Barret residence and a nearby street corner, and then sitting in front of the house “for quite a period of time.” Gov’t App’x at 107. When a silver Chrysler arrived, Mitchell talked to the driver, and then allowed him to back the car into the driveway. A second individual removed a cardboard box from the vehicle and brought it into the Barret residence. The cardboard box was consistent in size and appearance with boxes later seized at the Barret residence and found to contain marijuana.

On August 26, 2010, four parcels that together weighed roughly 45 kilograms were dropped off at a post office in Arizona. The packages arrived in Flushing on August 28, 2010. On August 28, 2010, co-defendant Andre Wilson backed his Cadillac into the driveway of the Barret residence and unloaded the boxes into the house. Also that same day, three parcels that together weighed roughly 34 kilograms were dropped off at a post office in Arizona. These three parcels arrived in Flushing on August 30, 2010, and Wilson again backed his Cadillac into Barret’s driveway and unloaded boxes into the house.

The pattern repeated itself multiple times throughout September: packages were tendered in Arizona to the postal service; arrived at various CMRAs in Flushing; and were delivered to the Barret residence. Altogether, during the month of September, investigators observed roughly 187 kilograms of marijuana transported in this fashion.

On October 5, 2010, ten packages weighing roughly 120 kilograms were sent from Arizona to three CMRAs in Flushing. Investigators observed Wilson pick up nine of the boxes and deliver them to the Bar-ret residence. Investigators later discovered the tenth box at another CMRA in Flushing, and seized’ 10.63 kilograms of marijuana from the box. In addition, on August 19, September 2, and 23, 2010, investigators conducted “trash pulls” of garbage left outside the Barret residence and discovered bags containing remnants of marijuana, plastic bags with marijuana residue and rubber bands.

On October 7, 2010, a number of individuals, including Forrest, gathered at the Barret residence. Around noon, Melbert Palmer arrived at the house with $1,500 to purchase marijuana. Barret told Palmer he didn’t have the marijuana, but that the marijuana was due soon, so Palmer should wait. Barret told Scarlett, Forrest, and two other individuals to join Wilson on his trip to pick up marijuana from the CMRAs. Palmer testified that he heard Barret tell Forrest to get two guns and to give one to Scarlett and one to another individual. Investigators observed Wilson and the others leaving to go to the CMRAs to pick up boxes, return to the Barret residence, unload boxes, and then return to the CMRAs to retrieve additional boxes.

Barret instructed Forrest and Constantine Branch to cut open the boxes and remove the marijuana, while asking Palmer to “burn” the address labels. Barret then left the residence and was arrested, along with a number of codefendants. Immediately prior to his arrest, Barret called Kevin Lee, who was still at the residence, and told Lee to “[r]un, run, run.” Following Barret’s arrest, a New York Police Department SWAT team executed a search warrant at the Barret residence. The police also arrested Scarlett, Forrest and several others.

During their search of the residence, investigators discovered an open box, along with one bale of marijuana on the kitchen counter and another bale on the floor. Investigators also opened the remaining unopened parcels and found more bales of marijuana. The total weight of the marijuana recovered from the packages exceeded 95.7 kilograms. Investigators recovered approximately 20.4 kilograms more of marijuana elsewhere in Barret’s house. The investigators also recovered two guns, one in an adjacent backyard and one in the living room, along with fifty-seven cellular phones from the Barret residence and on the persons arrested. Data recovered from one of the phones revealed text messages referring to bank names, account holders’ names, and account numbers. Based on information obtained from seized cell phones, Postal Inspector James Buthorn testified at trial that an individual named “Prezi”, a nickname for Barret’s Arizona-based marijuana supplier, Clifton Williams, had used a cell phone to send Barret messages with account information so that Barret could pay Williams.

II. The Indictment

On December 29, 2011, a federal grand jury in the Eastern District of New York returned a six-count superseding indictment. Count One charged Barret with being the leader of a continuing criminal enterprise in violation of 21 U.S.C. § 848(a). Count Two charged Barret, Scarlett, and Mitchell with conspiring to distribute and possess with intent to distribute more than 1,000 kilograms of marijuana between November 2006 and November 2010, in violation of 21 U.S.C. § 846. Counts Three and Four charged Barret with maintaining a stash house and conspiring to maintain a stash house in vi-' olation of 21 U.S.C. §§ 856(a) and 846, respectively. Count Five charged Barret and Scarlett with distribution and possession with intent to distribute at least 100 kilograms of marijuana on or about October 7, 2010, in violation of 21 U.S.C. § 841(a)(1). Count Six charged Barret, Scarlett, and Mitchell with possessing, brandishing and discharging firearms in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c).

III. The Trial and the Admission of Forrest’s Testimony

At trial, the government called nineteen witnesses, including four cooperators: Mel-bert Palmer, Clifton Williams, Leemax Neunie, and Kareem Forrest. Opening statements at trial began January 9, 2012, with Forrest as one of the co-defendants. The first four days of trial consisted primarily of testimony by the case agent, after which Forrest entered into proffer talks with the government. He entered into a cooperation agreement with the government and changed his plea from innocent to guilty on January 17, 2012.’ That same day, the government advised the court and defense counsel of its intention to add Forrest to its witness list. As a result, the district court instructed the jury that:

One co-defendant is no longer on trial, and you are not being asked, or you will not be asked to reach a verdict as to him. You are not to be concerned with that co-defendant, nor are you to speculate about the reasons why he is no longer part of this trial, and this fact should not affect or influence your verdict with respect to the remaining defendants. You must base your verdict as to the remaining defendants solely on the basis of evidence, or lack of evidence, against each defendant.

Gov’t App’x at 132.

Scarlett, Mitchell, and co-defendant Ryan Anderson objected and moved to exclude Forrest’s testimony, arguing: (1) Forrest participated in defense strategy before entering into his cooperation agreement, enabling him to report on such strategies to the government in violation of his co-defendants’ Sixth Amendment rights to counsel; (2) Forrest was present at trial for the testimony of the government’s first witness, violating Rule 615 of the Federal Rules of Evidence which, appellants assert, requires the exclusion of witnesses from the courtroom; and (3) Forrest’s testimony would likely refute assertions made during the defense’s opening and arguments that were critical to the defense.

In a written opinion, the district court rejected each argument. United States v. Barret, et al., No. 1:10-cr-809, slip op. at 1-14 (E.D.N.Y. Jan 21, 2012), reprinted in Gov’t App’x at 278-291. First, it stated that there was no Sixth Amendment violation because there was no evidence that Forrest had been “planted” or sent to infiltrate the defense team. Rather, he approached the government on his own volition, and his testimony would be limited to events that occurred prior to any meetings of defense counsel, eliminating any possible Sixth Amendment violation. The district court accepted the government’s representation that Forrest did not “communicate[] anything to the government that would reveal the tactics or strategy of the defense.” Barret, No. 1:10-cr-809, slip op. at 8-9, Gov’t App’x at 283. Second, the district court determined that Forrest’s presence in the courtroom during the testimony of the first government witness did not violate Rule 615 of the Federal Rules of Evidence. Rule 615 states that, upon a party’s request, the court “must order witnesses excluded [from the courtroom] so that they cannot hear other witnesses’ testimony” and that the court “may also sua sponte exclude witnesses from the courtroom ..., [but] such exclusion is not otherwise required.” Barret, No. 1:10-cr-809, slip op. at 8-9, Gov’t App’x at 284-85.

The district court determined that Mitchell failed to cite any legal authority to support his claim that Forrest’s testimony “should be excluded solely because he was present in the courtroom as a defendant during [witness] testimony.” Barret, No. 1:10-cr-809, slip op. at 8, Gov’t App’x at 285. Viewing the record as a whole, the district court was “unpersuaded that Mr. Forrest’s presence in the courtroom during the first three days of' trial constitute[d] valid grounds to exclude his testimony.” Id.

Finally, the district court rejected Scar-lett’s argument that Forrest’s testimony would cause unfair prejudice because it would refute assertions made during defense counsels’ opening statements and the defendants’ theories of defense. The court recognized that “when a codefendant switches sides and becomes a government witness, his testimony will likely help the government and harm the remaining defendant[s].” Id. (quoting United States v. Pierro, 32 F.3d 611, 617 n.5 (1st Cir. 1994), abrogated on other grounds by United States v. Anonymous Defendant, 629 F.3d 68 (1st Cir. 2010)). However, “[i]t is only unfair prejudice against which courts must guard.” Barret, No. 1:10-cr-809, slip op. at 8-9, Gov’t App’x at 285-86 (quoting Fierro, 32 F.3d at 617 n.5). In this case, the district court determined that there was no “ ‘cognizable prejudice,’ even though Mr. Forrest changed his plea and his testimony may ‘knock[ ] the pins out from under [the common] defense’ which he and his [original] co-defendants had initially asserted.” Id. (quoting Pierro, 32 F.3d at 617).

The district court stated it would follow the guidance set forth by the Seventh Circuit in United States v. Olson, 450 F.3d 655 (7th Cir. 2006), that “the lower court’s cautionary instructions [are] key to determining whether reversible error occurred.” Gov’t App’x at 286 (citing Olson, 450 F.3d at 678). Consistent with Olson, the district court instructed the jury:

Ladies and gentlemen of the jury, you will hear testimony about Mr. Forrest’s decision to enter into a guilty plea. You are not to draw any negative inferences against any of the remaining defendants whatsoever based on Mr. Forrest’s decision to enter a guilty plea or to testify during this trial. The guilt of any person, including Mr. Forrest, is not evidence of the guilt of any other person; specifically, the remaining defendants on trial. You, as jurors, may give Mr. Forrest’s testimony such weight that you feel it deserves keeping in mind that it must be considered with great caution and great care.

Gov’t App’x at 249.

IV. The Admission of Mitchell’s Statement

As part of its case-in-chief, the government introduced a statement given by Mitchell after his arrest. Mitchell was not with Barret or at the Barret residence during the October 7, 2010 raid, and thus was not arrested with Barrett and the other co-defendants. When Mitchell was arrested, however, he waived his Miranda rights and agreed to speak with investigators. Mitchell identified himself in photographs taken during surveillance of the Barret residence, and also identified others arrested on October 7, 2010, including Kwaume Wilson, Leemax Neunie, Kevin Lee, Melbert Palmer, Kerry Gunter, and Clifton Williams. Mitchell also stated he had seen someone named “Stewie” bring $9,000 to the Barret residence to buy marijuana. He also told investigators that he observed boxes being brought to the Bar-ret residence.

After the four-week jury trial, the jury returned a verdict on February 8, 2012, convicting Barret on all counts, Scarlett on the conspiracy to distribute and distribution counts, and Mitchell on the conspiracy to distribute count. The district court sentenced Barret primarily to 40 years’ imprisonment: 33 years’ imprisonment on Counts One through Five and a consecutive sentence of seven years’ imprisonment on Count Six (the Section 924(c) firearms count). The district court sentenced Scar-lett primarily to 150 months’ imprisonment. And the district court sentenced Mitchell primarily to 130 months’ imprisonment. This appeal followed.

DISCUSSION

I. Admission of Forrest’s Testimony.

We review a district court’s decision to admit testimony for abuse of discretion, “recognizing] that district courts enjoy broad discretion over the admission of evidence.” United States v. McDermott, 245 F.3d 133, 140 (2d Cir. 2001); see also United States v. SKW Metals & Alloys, Inc., 195 F.3d 83, 87 (2d Cir. 1999) (“Evidentiary rulings are reversed only if they are manifestly erroneous, such that the admission constitutes an abuse of discretion.” (internal quotation marks omitted)). “A district court has abused its discretion if its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or if its decision cannot be located within the range of permissible decisions.” United States v. Cuti, 720 F.3d 453, 457 (2d Cir. 2013).

The question of whether a district court may permit the testimony of codefendants who change their pleas to guilty mid-trial and testify for the government is a question of first impression in our Circuit. We join our sister Circuits in holding that a district court may allow such testimony, but must take appropriate steps to avoid causing unfair prejudice to the remaining codefendants. See, e.g., United States v. Olson, 450 F.3d 655, 677-78 (7th Cir. 2006) (holding that the district court did not abuse its discretion in permitting codefen-dant to testify for the government after pleading guilty mid-trial where the court gave appropriate instructions to the jury); United States v. Gambino, 926 F.2d 1355, 1364 (3d Cir. 1991) (same); see also United States v. Mejia, 82 F.3d 1032, 1037-38 (11th Cir. 1996) (“A mistrial is not required where a codefendant changes his plea in the middle of a trial if the jury is properly instructed and if evidence of the plea is properly limited.”), overruled on other grounds by Bloate v. United States, 559 U.S. 196, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010); Pierro, 32 F.3d at 617-18 (stating that “[a]s a general matter, a mistrial is not automatically required when a code-fendant changes his plea in mid-trial” and that “[t]hat principle obtains even when the newly pleaded defendant takes the witness stand and testifies against the remaining defendants”).

We adopt the standard articulated by the Seventh Circuit in Olson, which guided the district court’s approach below. Olson relied on the Seventh Circuit’s decision in United States v. Thomas, 774 F.2d 807 (7th Cir. 1985), which noted that “it is well-recognized that the testimony of codefen-dants after negotiating a midtrial plea bargain is admissible in certain instances for limited purposes.” 774 F.2d at 809. In Thomas, as here, a co-defendant pleaded guilty mid-trial and then testified against the remaining co-defendants. Id. As the co-defendants did here, the remaining defendants objected on the grounds that (1) the co-defendant participated in pre-trial defense planning and thus was aware of privileged conversations and strategies; (2) the co-defendant was present at trial prior to his guilty plea, and his presence violated the witness exclusion rule; and (3) the testimony of a defendant-turned-government-witness was unfairly prejudicial to the remaining defendants. Id. The Thomas court rejected each of these arguments, finding that absent a specific criticism by defendants as to “how the district judge’s cautionary instruction was lacking,” such testimony is generally permissible. Id. at 809-10. The Thomas court noted that “[tjhere is no evidence any confidences from” the pre-trial strategy sessions with defense counsel “were revealed [by the former co-defendant] on the witness stand or that his testimony was formulated with any pretrial strategies of the defendants taken into account.” Id. at 810. As to the alleged violation of Rule 615, the Thomas court found that the case law “reveals that absent any indication [that the former co-defendant’s] presence in the courtroom was the product of government connivance (or in some way a willful violation of the rule) it is within the district court’s sound discretion to allow the witness to testify.” Id.

Similarly, in Gambino, the Third Circuit addressed whether a co-defendant who changed his plea to guilty on the twelfth day of a 26-day trial could testify for the government. 926 F.2d at 1364. The Third Circuit held that the district court’s limiting instruction, given the day after the co-defendant was absent from the defense table, was sufficient to avoid the “possibility [of] prejudice” by “properly instruct[ing] the jury on the appropriate uses of guilty pleas.”'Id. The Gambino court noted that “as with the guilty pleas of the other co-conspirators, [the former co-defendant’s] guilty plea was not emphasized by the prosecutor during direct examination, and was not inappropriately emphasized during closing argument.” Id. For these reasons, the appropriate uses of the witness’s “plea were clear, and the district court’s decision to admit [the] testimony and to allow mention of [the witness’s] guilty plea was not an abuse of discretion.” Id.

We agree that a co-defendant who turns government witness during trial may be permitted to testify at that trial, provided that the district court takes steps to avoid unfair prejudice. First, the district court must ensure that the testimony of the former co-defendant is admitted only for the limited purpose of testifying to events other than the witness’s involvement in joint defense planning. This protects the remaining co-defendants from any prejudice that would arise from the former co-defendant’s awareness of defense strategy, pretrial conversations with co-defendants occurring after arrest, or privileged conversations with counsel.

Second, the district court must deliver adequate cautionary instructions to the jury to make certain that the jury does not draw any adverse or unfair inferences against the remaining co-defendants, does not use the former codefendant’s admission as guilt as evidence of the guilt of the remaining codefendants, and does not give the former có-defendant’s testimony undue weight. We approve of the instructions given here by the district court.

Scarlett and Mitchell argue that the admission of Forrest’s testimony violated their Sixth Amendment right to counsel. They cite to Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), where the Supreme Court made clear that the government cannot gain access to defense strategy by infiltrating the defense team via government informants who deliberately seek incriminating evidence that the prosecution will then use at trial. However, there is no evidence that the government infiltrated the defense team or deliberately elicited incriminating evidence. To the contrary, Forrest approached the government during the trial, and there is nothing in the record that contradicts the government’s representation that Forrest did not share defense strategy, defense tactics, or any other confidences with the government.

We also agree with the district court that Forrest’s presence in the courtroom during the testimony of the government’s first witness, Postal Inspector James Buthorn, did not violate Rule 615. Rule 615 states that. “[a]t a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own.” Fed. R. Evid. 615. Scarlett and Mitchell argue that because Forrest heard Buthorn’s testimony, along with defense counsel’s opening statements and other arguments, Forrest could then tailor his own testimony accordingly. However, as the district court aptly observed, Rule 615 does not operate to bar testimony simply because a witness was present as a defendant during a prior witness’s testimony. We agree with the Seventh Circuit that “absent any indication [Forrest’s] presence in the courtroom was the product of government connivance (or in some way a willful violation of the rule) it is within the district court’s sound discretion to allow the witness to testify.” Thomas, 774 F.2d at 810. Scarlett and Mitchell identify no such connivance or willful violation, and we find no abuse of discretion in allowing Forrest to testify.

To the extent Forrest’s testimony created a risk of unfair prejudice, the district court adequately mitigated that risk through its cautionary instructions to the jury. These instructions helped to ensure that the jurors (1) did not draw negative inferences against the remaining defendants; (2) did not use Forrest’s guilty plea as any evidence of the guilt of the remaining co-defendants; and (3) gave Forrest’s testimony the weight they felt it deserved, “keeping in mind that it must be considered with caution and great care.” Barret, No. 1:10-cr-809, slip op. at 9, Gov’t App’x at 286 (citing Olson, 450 F.3d at 678).

II. Sufficiency of the Evidence.

We next consider Mitchell’s argument that the evidence was insufficient to convict him of conspiring to distribute and distribution of 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841, 846. The drug quantity here played a key role in Mitchell’s sentencing: Title 21 dictates a mandatory minimum sentence of 10 years’ imprisonment if a defendant is found to have committed a crime involving more than 1,000 kilograms of marijuana. 21 U.S.C. § 841 (b)(1)(A)(vii).

To affirm a conviction for conspiracy to distribute under Section 846, the record must support a rational jury’s finding “(1) the existence of the conspiracy charged; (2) that the defendant had knowledge of the conspiracy; and (3) that the defendant intentionally joined the conspiracy.” United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008) (citations omitted). As relevant here, a “[c]onviction of a Section 841(b)(1)(A) conspiracy also requires that a jury find, or the defendant himself admit to, the drug-quantity element. Additionally, we require proof that this drug type and quantity were at least reasonably foreseeable to the co-conspirator defendant.” United States v. Adams, 448 F.3d 492, 499 (2d Cir. 2006) (citation omitted); see also Santos, 541 F.3d at 70-71.

Where, as here, a defendant challenges a conviction based on the insufficiency of the evidence against him, we are required:

to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Put another way, a court may enter a judgment of acquittal only if the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt.

United States v. Temple, 447 F.3d 130, 136 (2d Cir. 2006) (citations and internal quotation marks omitted). This is a “heavy burden.” Id. at 137. We must defer to the jury’s determination of witness credibility, the weight of the evidence, and the reasonable inferences the jury draws from the evidence. United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998). “In cases of conspiracy, deference to the jury’s findings ‘is especially important ... because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon’s scalpel.’ ” United States v. Morgan, 385 F.3d 196, 204 (2d Cir. 2004) (quoting United States v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992)).

Mitchell argues that the government’s evidence demonstrated nothing more than the fact that Mitchell associated with Barret and other members of the Fatherless Crew, and that Mitchell spent time at Barret’s house. He argues that the evidence did not demonstrate that he knew the full scope of the conspiracy, or that he could reasonably foresee that the criminal enterprise aimed to distribute in excess of 1,000 kilograms of marijuana. We disagree.

Here, the evidence permits a rational jury to find the existence of a conspiracy, that Mitchell had knowledge of the scope of the conspiracy, and that he intentionally joined the conspiracy. The government adduced evidence that Mitchell was a member of the Fatherless Crew, and that he called Barret “General” because Barret was “the boss for ‘The Fatherless Crew.’ ” Gov’t App’x at 139. Witnesses testified that Mitchell acted as a lookout when marijuana was scheduled to arrive at the stash house, that Barret took Mitchell on the road with him, and that Mitchell carried a gun to guard drugs stored at Barret’s residence. Forrest testified about an instance in which he heard Barret telling Mitchell to stand in front of the house and watch out for police and robbers when marijuana parcels were arriving. In addition, the government introduced video surveillance showing Mitchell walking in front of the Barret residence on September 23, 2010 just before a vehicle arrived carrying boxes of marijuana. The video shows Mitchell and another person taking the boxes out of the vehicle. We conclude that the record evidence amply supports the jury’s conclusion that Mitchell was a member of the conspiracy. Further, the government presented concrete evidence of the specific drug quantities involved, including evidence of the weight of the parcels tracked by investigators (approximately 403 kilograms) and evidence of the weight of the marijuana recovered following the October 7, 2010 raid (approximately 116 kilograms). Because the government showed that the Fatherless Crew received in excess of 376 kilograms of marijuana during a roughly two-month period in the course of an almost four-year conspiracy, the jury had an ample basis to conclude that it was reasonably foreseeable to Mitchell that the Fatherless Crew (of which he was a member) conspired to distribute and distributed at least 1,000 kilograms of marijuana. See United States v. Martinez, 987 F.2d 920, 926 (2d Cir. 1993) (government required to show that defendant could reasonably foresee the type and quantity of illicit substance involved in the conspiracy).

While a closer question, the evidence is also sufficient to establish a link between the quantities of drugs proved and a basis for the jury to infer that Mitchell was aware, or could reasonably foresee, that the conspiracy involved at least those quantities of drugs. Drug conspiracies can involve large numbers of individuals, with many members playing minor roles. Indeed, leaders of drug conspiracies may intentionally compartmentalize their operations in an effort to ensure that individual members are unaware of other parts of the conspiracy as well as the full scope of the conspiracy’s operations. For this reason, there may often be circumstances in which “bit” players in a conspiracy cannot reasonably foresee the full quantity of drugs involved in the conspiracy as a whole. Nevertheless, after a conviction we must view the evidence “in the light most favorable to the prosecution,” Temple, 447 F.3d at 136. Here, the record establishes that the conspiracy was broad in scope, that Mitchell had a close relationship with his half-brother Barret, that Mitchell was personally involved with many members of the Fatherless Crew, and that over an extended period of time Mitchell both protected Barret and served as a lookout during drug deliveries. On this record, a rational trier of fact could infer that Mitchell could have reasonably foreseen that the conspiracy involved in excess of 1,000 kilograms of marijuana. Thus, we affirm Mitchell’s conviction and sentence.

CONCLUSION

For the foregoing reasons, the judgments of the district court are AFFIRMED with respect to these challenges. Appellants’ remaining arguments are addressed in the summary order issued simultaneously with this opinion.

      . At trial, the government presented evidence of the quantities of marijuana involved in some instances in kilograms and in others, in pounds. For consistency, we provide the approximate quantity of marijuana involved in kilograms.

      . Government’s Exhibit 517, presented at trial in conjunction with Postal Inspector James Buthorn’s testimony and listing the weights of the parcels, was not provided to us as part of the record on appeal. We rely instead on the government's presentation of the data in its brief, which appellants have not disputed.

      . Investigators also recovered additional incriminating evidence such as digital scales, vacuum sealing machines, rolls of vacuum sealing bags, a gun box, and two firearms.

      . The name appears as "Presi” in the government’s appendix and is spelled both ways in the government’s brief.

      . The total weight received during the relevant period was calculated as the amount tendered'less 17.51 kilograms of marijuana seized from three parcels in January 2010 and 10 kilograms of marijuana seized from one of ten parcels tendered on October 5, 2010.