United States v. Michael White ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5181
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL LAWRENCE WHITE, a/k/a Big Boy,
Defendant - Appellant.
No. 12-4158
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR ANDRE THOMAS, a/k/a Flak, a/k/a Flat,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cr-00491-RDB-12; 1:10-cr-00491-RDB-3)
Argued: January 30, 2013 Decided: April 3, 2013
Before MOTZ, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Ruth J. Vernet, RUTH J. VERNET, ESQ., LLC, Rockville,
Maryland; Gary Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC,
Baltimore, Maryland, for Appellants. Christopher John Romano,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In 2010, a Harford, Maryland, drug trafficking
investigation yielded the arrests of Appellants Victor Thomas
and Michael White. 1 Thomas and White were charged with
conspiracy to distribute cocaine and cocaine base, in violation
of 21 U.S.C. § 846, and possession with intent to distribute the
same, in violation of 21 U.S.C. § 841(a)(1). Additionally,
Thomas was charged with felony possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1).
Following a four-day jury trial, Thomas and White were
convicted on both the conspiracy charge and the drug charge; a
hung jury resulted on Thomas’s gun charge. Thomas and White now
appeal their convictions on multiple grounds. Because we find
their arguments lacking in merit, we affirm.
I.
Thomas and White put forth several challenges to the
evidence introduced at trial. One of these issues they raised
below; the others they did not. We review each alleged error in
1
Twelve other individuals were also apprehended. Eleven of
them pled guilty. The twelfth, Rochelle Stokes, was tried with
Thomas and White but was acquitted via a Rule 29 motion for
judgment of acquittal at the end of the government’s case.
3
keeping with the preservation diligence, or lack thereof, that
Thomas and White exercised.
A.
Thomas and White first allege that the district court erred
in declining to suppress evidence retrieved via wiretap. We
review the factual findings underlying a motion to suppress for
clear error; the legal conclusions we review de novo. United
States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). In every
instance, we view the evidence in the light most favorable to
the party that prevailed below—in this instance, the government.
United States v. Jamison, 509 F.3d 623, 628 (4th Cir. 2007).
The Harford County Narcotics Task Force (HCNTF) conducted
the drug investigation leading to the apprehension of Thomas and
White. As part of its efforts, the HCNTF obtained authorization
to wiretap a cell phone number connected to Thomas. The HCNTF
monitored this number from April 26, 2010, to May 5, 2010, and,
during that time, intercepted nearly two thousand phone calls.
Thomas and White maintain that the HCNTF’s interceptions
violated both federal law and attorney-client privilege.
Governmental wiretaps must comport with Title III of the
Omnibus Crime Control and Safe Streets Act (Omnibus Act), 18
U.S.C. § 2510-2522, a statute that attempts to balance
individuals’ right to privacy against the beneficial inroads
4
that electronic monitoring can provide in fighting crime, United
States v. Clerkley, 556 F.2d 709, 712 (4th Cir. 1977). Relevant
to this case, the Act requires the government to minimize its
interceptions where possible to avoid monitoring communications
that are nongermane to a suspected offense. 18 U.S.C. § 2518(5)
(“Every order [authorizing a wiretap] . . . shall be executed as
soon as practicable, [and] shall be conducted in such a way as
to minimize the interception of communications not otherwise
subject to interception under this chapter . . . .”).
Thomas and White assert that the HCNTF violated the Omnibus
Act by failing to minimize any of its interceptions on Thomas’s
phone. They also aver that because one of the intercepted calls
was placed to an attorney, the HCNTF violated attorney-client
privilege. Notably, Thomas did not speak with the attorney
during the call that Thomas and White reference; he left a
voicemail message in which he simply inquired about a court date
for a civil case and asked the attorney to return his call.
When Thomas asked the attorney to return his call, however, he
provided a phone number different from the number that the HCNTF
was monitoring.
Based on these alleged violations, Thomas and White moved
pre-trial to suppress all evidence “derived from” the wiretaps.
The district court denied the motion, concluding that the
wiretap on Thomas’s phone lacked “any minimization issues.”
5
1.
We think it pertinent to note at the outset that the
government has not clearly indicated whether the HCNTF indeed
minimized any of its interception on Thomas’s phone. In
responding to pre-trial motions, the government simply
maintained that given the nature of the investigation, the
HCNTF’s interceptions comported with the minimization
requirement of the Omnibus Act. Furthermore, at the pre-trial
motions hearing, when the court queried the government, it again
responded in a manner that lacked any firm indication of
minimization:
I’m not in a position to advise the court at this
point. I asked the detective were in fact calls
minimized and his response to me was there may be
calls where portions of them were minimized. I can’t
speak with any more specificity than that. There were
calls I don’t think were minimized in their entirety.
There may have very well have been calls that were
minimized in part.
The government’s brief here is no more enlightening. In fact,
it noticeably lacks any delineation of minimization efforts or
explicit denial of Thomas and White’s allegation that “out of
thousands of calls not one was minimized.”
We are not unaware of the statutory framework that exists
for addressing alleged violations of the Omnibus Act. See 18
U.S.C. § 3504(a)(1) (providing that when an aggrieved party
alleges that “evidence is inadmissible because it is the primary
6
product of an unlawful act [under the Omnibus Act] or because it
was obtained by the exploitation of an unlawful act, the
opponent of the claim shall affirm or deny the occurrence of the
alleged unlawful act”); United States v. Apple, 915 F.2d 899,
905 (4th Cir. 1990) (recognizing that if allegations brought
under § 3504(a)(1) lack specificity, the government can respond
with a general denial). Because Thomas and White have not
contested the adequacy of the government’s response, however, we
decline to rule on whether such response was sufficient as a
matter of law. Rather, we simply document the government’s
persistent equivocation on this point and note that it forces us
to proceed, for the sake of argument only, on the assumption
that Thomas and White’s allegation of zero minimization is true.
Even assuming the truth of this allegation, however, we find no
error in the admission of the wiretap evidence.
a.
Assessing governmental compliance with the minimization
mandate of the Omnibus Act is not a formulaic process.
Reasonableness is the overarching standard, but the facts of
each case heavily impact a determination of whether the
government’s behavior was in fact “reasonable.” Clerkley, 556
F.2d at 716 (“In testing compliance with [the minimization]
requirement, the courts have proceeded on a case-by-case basis,
7
invoking a standard of reasonableness.”). We employ three
factors in our evaluation: “(1) the nature and scope of the
alleged criminal enterprise; (2) the government’s reasonable
expectation as to the content of, and parties to, the
conversations; and (3) the degree of judicial supervision while
the wiretap order is being executed.” Id.
b.
Here, we conclude that regardless of whether the HCNTF
minimized any of its interceptions on Thomas’s phone, it
complied with the mandate in the Omnibus Act. First, the
“nature and scope” of Thomas’s and White’s criminal activities
weighs in favor of unrestricted interceptions. This Court has
previously recognized that “[w]hen law enforcement officials are
confronted with large, far-flung and on-going criminal activity
involving multiple parties, they are afforded greater latitude
in conducting wiretaps.” Id.; see also United States v.
Quintana, 508 F.2d 867, 874 (7th Cir. 1975) (“Large and
sophisticated narcotics conspiracies may justify considerably
more interception than would a single criminal episode.”). The
HCNTF was investigating an elaborate drug conspiracy that
included at least thirteen individuals. Without a doubt,
Thomas’s and White’s conduct was “far-flung,” “on-going,” and
“involve[ed] multiple parties.” Clerkley, 556 F.2d at 716.
8
Thus, the HCNTF had “greater latitude” in executing its wiretap
than it might have otherwise had if the investigation involved
fewer individuals and isolated crime. We conclude therefore
that a ten-day unrestricted wiretap on Thomas’s phone, when
examined in light of the first reasonableness factor, satisfied
the minimization requirements of the Omnibus Act. Clerkley, 556
F.2d at 716-17 (“[T]he legitimate investigation of conspiracies
may necessitate the interception of all or almost all
communications over a given period of time.”) (collecting
cases).
Second, we consider the HCNTF’s “reasonable expectation”
regarding the “content of, and parties to” the anticipated
interceptions. Id. at 716. Here, we are concerned with whether
the HCNTF had “sufficient advance knowledge” such that it could
“tailor [its] minimization efforts.” Id. at 717.
Outside of excerpts from the order that authorized the
wiretap on Thomas’s phone, 2 the record provides little assistance
on this point. Nevertheless, we again conclude that the HCNTF
was justified in not minimizing its interceptions. In relevant
part, the order states,
2
The excerpts that Thomas and White have provided here are
from an order that authorized a wiretap for another defendant.
Regardless, because the government has cited to these excerpts
in its brief, we rely on them as accurate reflections of the
authorizing order for Thomas’s phone.
9
Due to the nature of this electronic surveillance
investigation, . . . and the fact that personal
conversations during intercepted calls may frequently
be interwoven with or precede conversations of a
criminal nature, initially, for the first three days,
all calls intercepted will be both monitored and
recorded for approximately three (3) minutes before
spot monitoring will be utilized. . . . After the
first three days, plant operators are to consider the
previously established patterns of conversations, if
any, and the identities of the conversants in
determining when a conversation is of a non-pertinent
nature. 3
Although this excerpt does not provide explicit indication of
the “advance knowledge” possessed by the HCNTF, its
authorization to intercept the initial three minutes of all
calls for the first three days implies a less-than-robust level
of “advance knowledge.” And this implication is bolstered by
the order’s grant of full discretion to plant operators in
distinguishing which conversations were pertinent to the
investigation. These factors lead us to again conclude that to
the extent the HCNTF failed to minimize any of its interceptions
on Thomas’s phone, such action was reasonable.
3
The record lacks any quotes from the applications and
affidavits on which the authorizing judge based his finding of
probable cause for issuance of the order. We note, however,
that Thomas and White have not contested the district court’s
pre-trial finding that the order was supported by “ample
probable cause.” Accordingly, we rely on what the order implies
regarding the facts that necessitated its issuance, viewing it
in a manner that favors the government. See Jamison, 509 F.3d
at 628.
10
Finally, we address the third factor, judicial supervision.
As to this step, the record is silent. We may still conclude,
however, that the HCNTF’s presumably unrestricted interceptions
were reasonable. While the Omnibus Act permits “the
[authorizing] judge to ask for interim reports from the
investigating agents,” it does not require that the judge do so.
Quintana, 508 F.2d at 875 (noting that “[t]he statute permits
but does not require” interim reports); see also 18 U.S.C.
§ 2518(6) (“Whenever an order authorizing interception is
entered pursuant to this chapter, the order may require reports
to be made to the judge who issued the order showing what
progress has been made toward achievement of the authorized
objective and the need for continued interception. Such reports
shall be made at such intervals as the judge may require.”).
Accordingly, even assuming that the HCNTF provided no progress
reports to the authorizing judge, its unrestricted interceptions
were not per se unlawful. Cf. Clerkley, 556 F.2d at 718 (“Where
the authorizing judge required and reviewed interim reports,
courts have been more willing to find a good faith attempt at
minimization.” (citing Quintana, 508 F.2d at 875)).
Having reviewed the limited record and the circumstances
under which the HCNTF conducted its wiretap on Thomas’s phone,
we conclude that the HCNTF acted reasonably, even if it failed
to minimize any of its interceptions. Simply put, Thomas and
11
White have produced no evidence that compels us to find error.
And although the government’s evidence is slim, we must examine
it in a manner that inures to its benefit. Jamison, 509 F.3d at
628. Accordingly, we hold that the district court properly
denied Thomas and White’s motion to suppress the government’s
wiretap evidence based on their contention that the HCNTF failed
to minimize its interceptions.
2.
We turn now to Thomas and White’s allegation that the
government violated Thomas’s attorney-client privilege by
intercepting his voicemail message. Evidentiary rulings are
subject to harmless error review. See United States v. Cole,
631 F.3d 146, 154 (4th Cir. 2011) (“[A] conviction will not be
overturned on account of an erroneous evidentiary ruling when
that error is deemed harmless within the meaning of Federal Rule
of Criminal Procedure 52(a).”). Under this standard, “to find a
district court’s error harmless, we need only be able to say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” United States v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (quoting United States
v. Heater, 63 F.3d 311, 325 (4th Cir. 1995)) (internal quotation
marks omitted). Here, we conclude that any violation of
12
Thomas’s attorney-client privilege was harmless; thus, we
decline to rule on whether the district court properly denied
Thomas and White’s suppression motion on this basis. See United
States v. Banks, 482 F.3d 733, 741 (4th Cir. 2007) (“We need not
decide whether the district court erred . . . because we hold
that any error would be harmless . . . .”).
Thomas and White allege,
Given the obvious importance of the call, as well
as the fact that the interception occurred early in
the investigation, there is a substantial probability
that evidence derived from the privileged and
indisputably important call was improperly used as a
basis for further wiretaps or was introduced at
trial . . . .
And the government counters,
[W]hile the call was pertinent from the
standpoint that Thomas provided a different number
than the one he was calling from, no conversations on
the other phone number were ever obtained. The only
line that was intercepted by investigators with regard
to Thomas was the number from which he placed the call
to the attorney’s [voicemail] system.
The government has indicated that it did not intercept
calls on the alternate number given by Thomas, and Thomas and
White have provided no evidence that leads us to conclude
otherwise. Moreover, Thomas’s inquiry related to a civil case,
not this criminal matter. Accordingly, we conclude that any
violation of Thomas’s attorney-client privilege was harmless,
and we decline to reverse Thomas’s and White’s convictions on
13
the ground that the government’s wiretap evidence should have
been suppressed.
B.
Next, we consider the three evidentiary claims that Thomas
and White failed to raise below: (1) that admission of their
criminal history under Federal Rule of Evidence 404(b) was
unduly prejudicial, (2) that Detective Brandon Underhill lacked
sufficient credentials for portions of his expert testimony, and
(3) that Underhill testified both as a fact witness and an
expert witness without appropriate safeguards against jury
confusion. 4
Because Thomas and White failed to preserve these issues,
our “authority to [provide a] remedy . . . is strictly
circumscribed.” Puckett v. United States, 556 U.S. 129, 134
(2009). Indeed, when a party does not inform a trial court of
an error at the time that it occurs, the party is barred from
4
The table of contents and facts section of Thomas and
White’s brief indicates their belief that other law enforcement
officers also provided expert testimony regarding matters about
which they had not been qualified as experts, and that the
district court erred in admitting such testimony. Because
Thomas and White failed to develop this apparent argument in the
body of their brief, we decline to consider it here. See Fed.
R. App. P. 28(a)(9)(A) (requiring the argument section of an
appellant’s opening brief to include the “appellant’s
contentions and the reasons for them”).
14
raising that issue on appeal, id. at 135, unless it can show
that an error “(1) was made, (2) is plain (i.e., clear or
obvious), and (3) affects substantial rights,” United States v.
Strieper, 666 F.3d 288, 295 (4th Cir. 2012) (quoting United
States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010)). Even then,
we “may exercise [our] discretion to correct the error only if
it ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’” Id. at 295 (alteration in
original) (quoting Lynn, 592 F.3d at 577).
1.
First, we review Thomas and White’s contention that
admission of their criminal history under Federal Rule of
Evidence 404(b) was unduly prejudicial. Federal Rule of
Evidence 404(b) disallows admission of “[e]vidence of a crime,
wrong, or other act . . . to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with [that] character.” Although such evidence is
admissible to prove, inter alia, that a defendant had the
requisite “intent” or “knowledge” to commit the crime in
question, Fed. R. Evid. 404(b)(2), it becomes inadmissible if
its “probative value is substantially outweighed by a danger
of . . . unfair prejudice,” Fed. R. Evid. 403.
15
a.
Pre-trial, the government filed a motion seeking to admit
evidence of a prior narcotics conviction for each appellant and
a prior firearm conviction for Thomas. The district court
granted the motion, reasoning that the evidence was admissible
because it related to the knowledge and intent necessary to
commit the crimes for which Thomas and White were on trial. It
also reasoned that the evidence would not unfairly prejudice
Thomas and White under Federal Rule of Evidence 403 because it
did not “involve conduct that was any more sensational or
disturbing than the crimes” with which Thomas and White were
charged in the present case. Accordingly, at trial, per
stipulation of the parties, the government stated,
White, on or about October 27 of 2001, was convicted
and sentenced . . . for the crimes of controlled
dangerous substance, manufacture, distribution of
narcotics and possession with intent to distribute
narcotics. This evidence is relevant to the issue of
knowledge and intent regarding the crime for which the
defendant stands accused.
Further, regarding Thomas, it stated,
Thomas, on or about August 12, 1992, was convicted and
sentenced . . . for the crime of conspiracy to
distribute cocaine, and[,] . . . on or about October
10, 1997, was convicted and sentenced . . . for the
crime of attempted distribution of cocaine[, and] on
or about June 22, 1994 . . . was convicted . . . on
two counts of criminal possession of a weapon in the
third degree, to wit, handguns.
16
The district court then immediately instructed the jury as
follows:
This evidence is being offered only on the issue of
knowledge and intent. It is not to be accepted by you
that someone is a bad person because of a prior
conviction, it is not to be considered by you in terms
of a propensity to commit an offense. It is merely
being offered on the issue of knowledge and intent,
which is very important in this case, and it’s being
offered in that context alone and no other context.
Following this clarification from the court, the government
proceeded with the remainder of its case.
After the government closed its case, but prior to
presentation of defense evidence and witnesses, Juror Number 12
submitted a list of questions to the court. One of the
questions said, “What is meant by the stipulation for her
knowledge and not to show good or bad person?” After a bench
conference in which the judge shared the questions with counsel
for each party, he said to the jury, “Ladies and gentlemen,
actually [J]uror Number 12, with respect to those
questions, . . . I have made those questions that you
have . . . known to the lawyers, they can address them in
whatever fashion they want.” Counsel for Thomas and White did
not object to the manner in which the court dealt with Juror
Number 12’s questions.
During closing arguments, counsel for White and counsel for
the government both referenced the purpose for which the prior
17
conviction evidence was admitted. In its closing argument, the
government stated, “Now, [counsel for White] in his opening
[argument] told you that his client, I think the word he used
was a p[au]per. Most respectfully, I don’t think there’s any
evidence for that, but I submit to you what there is evidence
[of] is that he’s a criminal.” Similarly, in rebuttal, the
government stated,
Mr. White’s status is not the issue in this case,
ladies and gentlemen. His status is not an issue.
He’s a criminal. Because the evidence that we
presented over the last week establishes that he’s
guilty. And as such, the government has proven his
criminal conduct. We’re not here to prove his status
or attack him as a person.
Again, counsel for Thomas and White recorded no objection to
these statements.
Here, Thomas and White cite Juror Number 12’s question and
the government’s statements during closing as evidence that they
were unfairly prejudiced by admission of the prior conviction
evidence. We disagree.
b.
First, Thomas’s and White’s prior convictions were similar
to the charges they faced in this case. Such evidence was
therefore relevant to whether they possessed the requisite
knowledge and intent to commit the narcotics crimes with which
they were charged. Furthermore, immediately after admission of
the evidence, the court provided clear instructions to the jury
18
as to the legitimate implications of the prior convictions.
Thomas and White argue, of course, that this limiting
instruction was insufficient to assuage the prejudice that
resulted. But they fail to tell us exactly what prejudice
ensued. In their brief, they argue,
When the jurors stated mid-trial that they did not
understand the court’s [404(b)] instructions regarding
use of prior acts to establish whether the defendant
is a “good or bad person,” the court was presented
with clear evidence of unfair prejudice . . . and
[had] an obligation to take appropriate corrective
measures at that time.
But such is not the case. First, “the jurors” did not
collectively state anything regarding a lack of understanding.
Rather, one juror, Juror Number 12, posed a question regarding
the appropriate use of the evidence. Moreover, Juror Number
12’s question did not “present[]” the court “with clear evidence
of unfair prejudice.” Instead, it simply revealed confusion
about the court’s limiting instruction. To the extent that such
confusion resulted in unfair prejudice, that result is not
“clear or obvious” to us, as the plain error standard requires.
Second, we decline to conclude that the government’s
comments during closing arguments caused unfair prejudice.
Taken in context, neither comment clearly referred to White’s
prior conviction; rather, the statements simply urged that on
the whole, the evidence presented during trial indicated that
White was “a criminal.” In our view, the comments referred to
19
White’s status based on his actions in the present case; they
did not beseech the jury to issue a guilty verdict based on
White’s prior criminal conduct. To the extent that the comments
were interpreted as a reference to White’s prior conduct, such a
result is not “clear or obvious.” Thus, we decline to reverse
Thomas’s and White’s convictions based on the district court’s
admission of evidence regarding their previous crimes or the
government’s statements during closing argument.
2.
Next, we review Thomas and White’s contentions regarding
Underhill’s testimony: (1) that portions of it were unsupported
by a reliable methodology and (2) that it mixed fact testimony
and expert testimony, such that the jury was confused.
a.
When the government called Detective Underhill to testify
as an expert, he indicated that he had been employed by the
Harford County Sheriff’s Office for ten years and that he was
presently assigned to work with the HCNTF. He testified that he
had been with the HCNTF for “just over four years” and that his
primary duties were “investigations of mid to upper level drug
traffickers and drug trafficking organizations in and around the
Harford County area.” Underhill further testified that he had
20
received forty hours of specialized training related to
narcotics investigations and had participated “in hundreds of
arrests involving drug investigations.” He also stated that he
had completed course work in other specialized areas related to
drug investigations and undercover operations. Underhill noted
that he had acted in an undercover capacity and that in that
role had purchased cocaine, crack cocaine, oxycodone, and
marijuana. Underhill also attested that he had acted as a
monitor of phone calls for wiretap investigations; he estimated
that he had monitored between 10,000 and 15,000 drug-related
phone conversations during his career. Underhill testified that
he monitored the phone calls that were intercepted on Thomas’s
phone in this case. Relevant to such monitoring, Underhill
indicated that it was “common” for drug conspirators “to attempt
to conceal or code their phone conversations” and that his
“training,” “knowledge,” and “experience” had made him “familiar
with those terms and codes.”
After the parties had an opportunity to examine Underhill
regarding his qualifications, the court asked, “Is there any
challenge to [Underhill’s] expertise with respect to the matter
of drug terminology and drug jargon from the point of view of
the defense counsel?” Defense counsel indicated that it had no
objections. The court then qualified Underhill as an expert “to
testify with respect to drug jargon and drug terms and the
21
methodology of drug distribution,” cautioning the jury that
“[a]s with all witness, [it was] up to [them] to accept or
reject [Underhill’s] testimony.”
Underhill went on to testify as to the meaning of certain
phrases and terms used in the phone calls that were intercepted.
For example, Underhill testified, “Jolly Rancher is a reference
to crack cocaine . . . and Lassie is a reference to powder
cocaine.” He further testified as to the phrase “outfit in the
dryer,” explaining that “in the process of converting cocaine
hydrochloride into cocaine base there is a drying process that
has to take place and this is referencing that drying process.”
And as to the phrase “I don’t think Shorty’s dressed up,”
Underhill interpreted it to mean, “[a]ll [the seller] has is
cocaine powder, he doesn’t have any cocaine that’s been cooked
up into crack cocaine.”
At one point during Underhill’s testimony, referring to a
recorded phone call that had been played for the jury, the
government engaged in the following colloquy with Underhill:
Q. Detective Underhill, there’s a reference to Mr.
Moore telling Mr. White that he was holding that
for him and Mr. White responding that he has the
change for that.
A. Yes.
Q. What is that a reference to, sir?
A. Mr. Moore had cocaine for Mr. White and Mr. White
was indicating that he had money for him.
22
Immediately following this testimony, without any objection by
defense counsel, the court initiated a bench conference and
cautioned the government to keep Underhill’s testimony within
“the ambit of an expert.” In the court’s view, “the phrase I
was holding that for you in no way involve[d] expertise as to
drug language.” The court did not strike this testimony or
instruct the jury to disregard it, however.
In addition to providing expert testimony as to the
interpretation of coded words and phrases from intercepted phone
calls, Underhill also testified as a fact witness regarding
various aspects of the case—the circumstances of arrests, the
recovery of drugs, and the execution of a search warrant. When
Underhill provided this testimony, neither the parties nor the
court distinguished it from the expert testimony that he
provided. According to Thomas and White, “[Underhill]
seamlessly transitioned between lay and expert testimony.”
At the end of the trial, during its formal jury
instructions, the court referenced Underhill’s testimony,
stating,
In weighing [expert] opinion testimony, you may
consider the witness’s qualifications, his or her
opinions, the reasons for testifying as well as all of
the other considerations that ordinarily apply when
you are deciding whether or not to believe a witness’s
testimony. You may give the opinion testimony
whatever weight, if any, you find it deserves in light
of all of the evidence in this case. You should not,
23
however, accept opinion testimony merely because I
allow the witness to testify concerning his or her
opinion, nor should you substitute it for your own
reason, judgment and common sense.
b.
Federal Rule of Evidence 702 governs the admission of
expert testimony, stipulating, inter alia, that “[a] witness who
is qualified as an expert . . . may testify in the form of an
opinion . . . if . . . the testimony is the product of reliable
principles and methods.” Notably, Thomas and White do not
challenge Underhill’s qualification as an expert. They instead
contest the methodology that supported his testimony,
maintaining that his opinion regarding the meaning of terms and
phrases was simply “rank speculation.” They aver that “almost
no topic of conversation was safe from Detective Underhill’s
leap to a connection with the drug world” and that “almost never
did Detective Underhill explain the methodology he used in
concluding that certain words [were] used as drug code rather
than because of their plain and ordinary meaning.” We conclude
otherwise.
Before analyzing the intricacies of Underhill’s testimony,
we reiterate the well-settled principle that a “trial judge
[has] considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony is
reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
24
(1999). Moreover, this Court has previously advised that the
“test of reliability [in Federal Rule of Evidence 702] is
flexible.” United States v. Wilson, 484 F.3d 267, 274 (4th Cir.
2007) (quoting Kumho Tire Co., 526 U.S. at 141-42). For
example, experiential expert testimony is noticeably less
“testable” than testimony based on pure science; nevertheless,
per Rule 702, experience can still form the basis for reliable
expert testimony. Id. Indeed, the advisory committee notes to
Rule 702 explicitly contemplate the use of experiential expert
testimony by law enforcement agents in a trial that involves
drug transactions:
[T]he principle used by the agent is that participants
in such transactions regularly use code words to
conceal the nature of their activities. The method
used by the agent is the application of extensive
experience to analyze the meaning of the
conversations. So long as the principles and methods
are reliable and applied reliably to the facts of the
case, this type of testimony should be admitted.
Fed. R. Evid. 702 advisory committee’s note. Further, this
Court has previously held that “law enforcement officers with
extensive drug experience are qualified to give expert testimony
on the meaning of drug-related code words.” Wilson, 484 F.3d at
275.
Thomas and White are concerned about the explanation of
methodology (or lack thereof) that accompanied Underhill’s
testimony. But our precedent does not require a law enforcement
25
officer providing experiential expert testimony to painstakingly
explain his deciphering methodology. See United States v.
Baptiste, 596 F.3d 214, 222-23 & n.6 (4th Cir. 2010) (holding
that a district court did not commit plain error in admitting
the testimony of a drug expert when that expert had not
“specifically mention[ed] the word ‘methodology’ in his
testimony” but had stated that he was experientially “familiar
with the street-level jargon associated with drug trafficking”
and that he decoded conversations by examining their context).
Thus, to the extent that the district court erred in finding
Underhill’s methodology sufficiently reliable, such error was
not plain.
Thomas and White are also concerned that Underhill
interpreted phrases that were commonplace and not in need of
elucidation by an expert. Again, we find that if the district
court erred, such error was not plain. Even assuming, for the
sake of argument only, that the court should have stricken
Underhill’s testimony regarding the phrase “I was holding that
for you,” we cannot ascertain that the court’s failure to do so
violated Thomas’s and White’s substantial rights, especially in
light of the two instructions the court gave regarding the
weight of the testimony. Accordingly, we decline to reverse the
verdict on this ground.
26
c.
Thomas and White also contend that when Underhill
“seamlessly” testified both as an expert and fact witness, the
district court failed to adopt adequate safeguards to prevent
jury confusion. Dual-role testimony is not per se prejudicial
to a defendant. Baptise, 596 F.3d at 224. However, when a
witness plays such a dual role, the district court must take
precautions to ensure that the jury does not become confused and
accord undue weight to fact witness testimony given by the
expert. Id. (quoting Wilson, 484 F.3d at 278 n.5). Appropriate
precautions include (1) having the expert witness make two
separate trips to the stand and (2) issuing a cautionary
instruction to the jury regarding the witness’s dual role. Id.
Here, lay and expert testimony were interwoven and no
cautionary instruction was issued; thus, the risk of jury
confusion was high. This Court recently addressed a nearly
identical circumstance in Baptiste. Although it ultimately
declined to reverse the jury verdict in that case because it was
constrained by a plain error standard and “the facts in
the . . . case placed it in a gray area of the law,” the court
issued a caution regarding the handling of dual-role testimony:
[W]e note that the district courts should take steps
to ensure that there is a clear demarcation in the
jury’s mind between a witness’s lay and expert roles.
This may be accomplished, for example, by cautionary
warnings or instructions, by requiring the witness to
27
take separate trips to the stand in each capacity, or
by ensuring that counsel makes clear when he is
eliciting lay versus expert testimony.
Baptiste, 596 F.3d at 225 n.9.
Given our discussion of appropriate safeguards in Baptiste,
and the district court’s failure in this case to implement any
of those safeguards, we can readily say that the court erred in
not employing methods to help the jurors “understand that they
[could] not give [Underhill’s] lay testimony additional weight
simply because of his dual-role as an expert.” Id. We cannot
say that the district court’s error merits reversal, however.
Under the plain error standard, reversal requires an obvious
error that affects substantial rights. Thomas and White have
failed to demonstrate how the district court’s error rises to
such a level. In their brief, they claim that “[t]he errors
were numerous and the confusion widespread.” However, they fail
to cite any specific examples of this “widespread” confusion.
Accordingly, we are once again constrained to uphold the jury’s
verdict.
II.
Thomas and White next contend that the district court erred
in declining to give a multiple conspiracies jury instruction.
A multiple conspiracies jury instruction is appropriate when
“the proof at trial demonstrates that [the] appellants were
28
involved only in separate conspiracies unrelated to the overall
conspiracy charged in the indictment.” United States v.
Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (quoting United
States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994)) (internal
quotation marks omitted).
The government’s evidence supporting Thomas’s and White’s
conspiracy charges consisted of (1) wiretap evidence showing
contact between Michael Moore 5 and Thomas and between Moore and
White and (2) evidence showing that Moore and Thomas shared
customers—namely, Stokes, Leandre Preston, and Joseph Hensley,
all individuals who were apprehended with Thomas and White.
At the jury charge conference, Thomas and White requested a
multiple conspiracies jury instruction, maintaining that the
government’s evidence proved there were “essentially two
distribution networks” with individual buyers and that the
government made “no connection between the distribution networks
and any of [the] individual buyers.” The district court denied
Thomas and White’s request, and they contend that it erred in
doing so.
“We review [a] district court’s decision to give or refuse
to give a jury instruction for abuse of discretion.” United
5
Michael Moore was charged with White and Thomas but is not
a party to this appeal.
29
States v. Sarwari, 669 F.3d 401, 410–11 (4th Cir. 2012) (quoting
United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009))
(internal quotation marks omitted). We will find refusal to
give an instruction erroneous only if the requested instruction
“(1) was correct, (2) was not substantially covered by the
court’s charge to the jury, and (3) dealt with some point in the
trial so important that the failure to give the requested
instruction seriously impaired the defendant’s ability to
conduct his defense.” United States v. Green, 599 F.3d 360, 378
(4th Cir. 2010) (quoting Passaro, 577 F.3d at 221). Here, we
conclude the district court properly denied Thomas and White’s
request for a multiple conspiracies jury instruction.
Thomas and White maintain that the instruction they
requested was correct because “[t]he government presented no
evidence that [they] had any relationship with each other, or
any acquaintances of alleged co-conspirators in common.” They
admit that the government presented evidence that Stokes
purchased her drugs from both Thomas and Moore and that White
purchased his drugs from Moore, but they aver that such evidence
is insufficient to show that White and Thomas were involved in
the same conspiracy. We are unconvinced.
Thomas and White fail to accord sufficient weight to our
precedent regarding the proof necessary for a conspiracy. A
conspiracy need not “have a discrete, identifiable
30
organizational structure.” United States v. Banks, 10 F.3d
1044, 1054 (4th Cir. 1993). Rather, it can be simply “a
loosely-knit association of members linked only by their mutual
interest in sustaining the overall enterprise of catering to the
ultimate demands of a particular drug consumption market.” Id.
Moreover, “[o]nce it has been shown that a conspiracy exists,
the evidence need only establish a slight connection between the
defendant and the conspiracy to support conviction.” United
States v. Burgos, 94 F.3d 849, 861 (4th Cir. 1996) (alteration
in original) (quoting United States v. Brooks, 957 F.2d 1138,
1147 (4th Cir. 1992)) (internal quotation marks omitted). In
fact, proof of a conspiracy does not even require that a
defendant “know all of his coconspirators.” Id. Such is the
case here. The government may not have outlined the
organizational structure of Thomas and White’s conspiracy, but
it presented evidence sufficient to show that they were, at
minimum, part of a “loosely-knit association of members” that
existed for the purpose of drug trafficking. We therefore
conclude that the district court did not act “arbitrarily or
irrationally” in declining to give the multiple conspiracies
jury instruction that Thomas and White requested.
31
III.
Finally, we address White’s contention that the government
presented insufficient evidence to support his conspiracy
conviction. When we review a trial to determine whether
sufficient evidence supported conviction on a certain charge, we
view the evidence through a lens that favors the government, and
we ask, “Could any reasonable juror have found the defendant
guilty of this charge beyond a reasonable doubt?” See United
States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).
We have reviewed the evidence that the government presented
against White, and we are satisfied that it was sufficient for a
reasonable juror to find White guilty of conspiracy under 21
U.S.C. § 846. White argues that the government “may have proved
that a drug trafficking conspiracy existed, [but] there was no
evidence to support a finding that . . . White knowingly or
voluntarily participated in that conspiracy.” Further, White
contends that the government’s circumstantial evidence of
White’s participation in the sale of drugs was insufficient to
prove his involvement in the conspiracy. We are unpersuaded.
At trial, the government presented evidence showing that on
several occasions, White called Moore to purchase powder cocaine
and crack cocaine. The government also presented evidence
indicating that on April 8, 2010, after White called Moore
requesting cocaine, he met with Moore in a black Nissan and then
32
exited the Nissan and entered a white Dodge. After a “brief
time, approximately a minute or so,” White exited the Dodge and
re-entered the Nissan. “[J]ust a couple of minutes after the
meeting,” law enforcement officers stopped the Dodge and
discovered crack cocaine in the driver’s possession. The
government also presented evidence of several other brief
meetings between White and Moore.
We recognize that such evidence may seem negligible.
Nonetheless, it is sufficient to support a conclusion that White
participated in a conspiracy with Thomas and Moore. And when
enough evidence exists to support a reasonable juror’s
conclusion of guilt, we will not second-guess the verdict.
Accordingly, we again decline to reverse White’s conviction.
IV.
We have reviewed the evidence provided to us in the record,
and we have considered each of Thomas’s and White’s allegations.
Because we ascertain no reversible error, we affirm the jury’s
verdict on all counts.
AFFIRMED
33