Evidence – Expert – Drugs

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Where (1) a defendant was convicted of conspiracy as well as distribution of and possession with intent to distribute certain quantities of methamphetamine and (2) he has argued on appeal that the trial judge erred by permitting a police officer to testify as a lay witness that the nearly two pounds of methamphetamine uncovered in the defendant’s vehicle was inconsistent with personal use, the officer’s testimony was harmless, so the convictions should be affirmed.

“Jacob Parlin was convicted by a jury of two drug counts charging him with distribution of and possession with intent to distribute certain quantities of methamphetamine and conspiracy to do the same. His defense at trial was that he was a user but not a distributor. On appeal, he argues first that the trial court erred by permitting a police officer to testify as a lay witness that the nearly two pounds of methamphetamine uncovered in his vehicle was inconsistent with personal use. Second, he contends that, without the police officer’s challenged testimony, the evidence was insufficient to show intent to distribute. For the reasons that follow, we affirm Parlin’s conviction on both counts. …

“… The government’s first witness was Lieutenant Lindsey Cunningham, who oversaw the drug task force at the New Hampshire Rockingham County Sheriff’s Office at the time of Parlin’s arrest. …

“Parlin does not argue that the evidence admitted at trial was insufficient to support his conviction on either charge. Rather, he argues that the evidence would have been insufficient to show the intent to distribute required for both charges had the trial court not admitted — improperly in Parlin’s view — the opinion of Lieutenant Cunningham ‘about the quantity of methamphetamine that is associated with personal use generally.’ …

“But the law is clear that, in assessing the sufficiency of the evidence to support a verdict in a criminal case, we consider all the evidence admitted, without regard to whether the trial court’s evidentiary rulings were correct. United States v. Santiago-González, 825 F.3d 41, 46 (1st Cir. 2016). So, for that simple reason, Parlin’s only challenge to the sufficiency of the evidence fails. …

“Our ruling does not leave Parlin without any remedy if he was harmed by an incorrect evidentiary decision by the trial court. The erroneous admission of evidence requires a new trial unless the government shows it is ‘highly probable that the error[] did not influence the verdict.’ … It is only once the government meets this burden that an error is considered harmless and the verdict can stand. … As we will explain, however, we find that the admission of Lieutenant Cunningham’s testimony about the quantity of methamphetamine associated with personal use to have been harmless — more frosting than cake. So, we need not consider whether its admission was somehow improper.

“Cunningham’s testimony was harmless by any measure because the other evidence made it highly improbable that the jury would not have found as it did even without that testimony. The recorded phone conversations with [Harry] Tam made it crystal clear that Parlin was in the business of selling methamphetamine. Those discussions concerned a pricing strategy in response to competitive pressures, impacts of the COVID pandemic on sales, profit opportunity, and supply sourcing. These are clearly not the concerns of a simple user looking for a hit. And any possible remaining ambiguity regarding Parlin’s role was plainly resolved by Tam and [Vincent] Duong’s explicit references to Parlin’s customers.

“It is true that the prosecution touted Cunningham’s testimony ‘that a normal …. meth user[] uses one or two, maybe three grams a day.’ That touting certainly suggests that the prosecutor saw Cunningham’s testimony as incriminating enough to warrant emphasis. But the fact remains that the recorded conversations alone rendered almost preposterous the suggestion that the roughly $7,000 worth of methamphetamine9 Parlin was transporting was for his personal use. Nor was Cunningham’s testimony the prosecution’s sole focus. The government’s closing also emphasized the value and sheer volume of the drugs (‘enough for a casserole dish’) and trained the jury’s focus on the wiretapped phone calls. In short, the fact that the frosting was attractive does not mean that the cake itself was not filling.”

United States v. Parlin (Lawyers Weekly No. 01-047-26) (10 pages) (Kayatta, J.) Appealed from a judgment entered by Sorokin, J., in the U.S. District Court for the District of Massachusetts. Jonathan Mermin and Preti, Flaherty, Beliveau & Pachios on brief for the defendant-appellant; Donald C. Lockhart and Joshua S. Levy on brief for the United States (Docket No. 24-1297) (March 11, 2026).

Click here to read the full text of the opinion.