United States v. Danilo Garcia , 752 F.3d 382 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANILO GARCIA, a/k/a Donny, a/k/a Darreo,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:11-cr-00569-CCB-1)
Argued: March 20, 2014 Decided: May 15, 2014
Before GREGORY and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by published opinion. Senior Judge Davis
wrote the opinion, in which Judge Gregory and Judge Keenan
joined.
ARGUED: Todd Michael Brooks, WHITEFORD TAYLOR & PRESTON LLP,
Baltimore, Maryland, for Appellant. Ayn Brigoli Ducao, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Erek L. Barron, WHITEFORD TAYLOR & PRESTON
LLP, Bethesda, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
DAVIS, Senior Circuit Judge:
Appellant Danilo Garcia, one of fourteen defendants named
in a superseding indictment returned by the grand jury in the
District of Maryland, appeals his convictions on five counts of
narcotics trafficking. After a severance, Garcia proceeded to
trial with two codefendants.
The Government’s presentation at trial consisted primarily
of two types of evidence: (1) law enforcement testimony
recounting observations (and describing a few drug seizures)
resulting from close surveillance of the physical comings and
goings of numerous coconspirators and targets, including drug
couriers; and (2) audio recordings of wiretapped mobile
telephone conversations concerning drug supplies, deliveries,
and payments therefor. Over defendants’ vigorous objections
before and during trial, the district court permitted an agent
of the Federal Bureau of Investigation to testify as an expert
on coded drug-related conversations. The agent also testified as
a fact witness regarding aspects of the lengthy investigation.
The jury convicted Garcia of drug conspiracy and of the
four substantive counts in which he was named, but it was unable
to reach a unanimous verdict as to his co-defendants and the
court declared a mistrial on those charges.
On appeal, Garcia assigns error to the district court’s
admission of the decoding expert’s testimony, and the court’s
2
denial of his motion for judgment of acquittal for lack of
sufficient evidence as to one of the substantive counts on which
he was convicted.
Upon our careful review of the record, we hold that the
district court abused its discretion in its evidentiary rulings
as viewed in their totality. Specifically, we hold that, on this
record, safeguards adopted by the district court to avoid the
substantial risk of prejudice inhering in the jury’s receipt of
the decoding expert’s testimony were inadequate. Garcia timely
and repeatedly objected regarding the foundational sufficiency
and methodological reliability of the agent’s expert testimony,
and he specifically pointed to the risk of prejudice arising
from the agent’s dual capacity as both an expert and fact
witness. We are persuaded that, under the circumstances of this
case, neither the district court’s cautionary instructions to
the jury nor its sporadic sustaining of some of counsels’
objections adequately mitigated the risk of substantial
prejudice. Furthermore, we are unable to conclude that the
missteps evident in this record were harmless. We reach this
conclusion reluctantly, because the district court tried
mightily to hew to the lines we have drawn in prior cases.
Accordingly, although we discern no reversible error in the
court’s denial of the motion for judgment of acquittal, we hold
that the errors in the decoding expert’s testimony so infected
3
the entire trial that we must vacate the judgment and remand the
case to the district court for further proceedings.
I.
A.
On August 23, 2012, the grand jury returned a ten-count
superseding indictment against Garcia and thirteen others.
Garcia was named in the following five counts: Count One,
conspiracy to distribute more than one kilogram or more of
heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846, from April
2009 to November 2011; Count Four, possession with intent to
distribute heroin on April 19, 2011 in violation of 21 U.S.C.
§ 841(a)(1); Count Five, possession with intent to distribute
100 grams or more of heroin on July 22, 2011 in violation of 21
U.S.C. § 841(a)(1); Count Six, possession with intent to
distribute 100 grams or more of heroin on August 5, 2011 in
violation of 21 U.S.C. § 841(a)(1); and Count Seven, possession
with intent to distribute 100 grams or more of heroin on April
17, 2009 in violation of 21 U.S.C. § 841(a)(1).
B.
At the times relevant to this case, Garcia lived in New
York City. The basic theory of the prosecution was
straightforward: (1) coconspirator Yoni Rodriguez, who pled
guilty in the Eastern District of New York on narcotics charges
and testified against Garcia pursuant to a plea agreement, was
4
Garcia’s source of uncut heroin starting sometime in 2005,
selling to Garcia every few weeks or so, usually on consignment;
(2) Garcia would distribute the heroin in Baltimore, after
either transporting the drugs himself or via drug couriers from
New York; (3) Roy Lee Clay and Walter Lee Powell were Baltimore-
based middlemen who distributed quantities of heroin to other
dealers in the Baltimore area.
In addition to the charge of knowing participation in the
thirty-month drug trafficking conspiracy, Garcia was charged
with four specific instances of possession with intent to
distribute heroin, the circumstances surrounding which we
summarize as follows:
On April 17, 2009, a police officer observed
Garcia exiting a white shuttle bus in the parking lot
of a Baltimore travel plaza, carrying a brown paper
bag. After Garcia saw the police officer, he reentered
the bus, left the bag behind, and disclaimed any
knowledge of or interest in the bag. The officer found
a manicure set inside the bag, and inside the manicure
set he discovered approximately 200 grams of heroin.
On April 19, 2011, police observed Powell enter
Kenya Salik Montgomery’s car and exiting after about
two minutes. When, about two hours later, the police
searched Montgomery, they found multiple baggies of
heroin. 1
1
Garcia’s convictions on this and the two subsequent
incidents are based on an aiding and abetting theory, tracing
the drugs seized back to the heroin Garcia had obtained from
Rodriguez and then distributed to dealers in Baltimore.
5
On July 22, 2011, Garcia spoke by phone with
Powell and instructed Powell to travel to
Philadelphia. The FBI observed Powell when he arrived
in Philadelphia and visited a certain neighborhood.
After remaining in Philadelphia a mere fifteen
minutes, Powell returned to Maryland (followed by law
enforcement). A Maryland State Police trooper
conducted a traffic stop upon Powell’s entry into the
state and the trooper recovered 143.7 grams of heroin
from Powell.
On August 5, 2011, FBI agents observed Nancy
Feliciano at a travel plaza in Baltimore, leaving a
van and getting into a cab. As she was getting into
the cab, the agents approached her and searched her
bags (with her consent). They found approximately 500
grams of heroin and an index card which had Powell’s
address and phone number. Later, while she was being
detained in the custody of the FBI, Feliciano made a
monitored call to Garcia and accused him of providing
her with heroin.
During the trial, many members of law enforcement,
including FBI agents, U.S. Drug Enforcement Agency agents, and
state and local law enforcement officers, testified regarding
their surveillance and observations of the defendants together
in and around Baltimore, as well as in New York and once in
Philadelphia. Critically, much of the investigation entailed the
maintenance of wiretaps on four mobile phones used by Garcia,
two used by Clay, and two used by Powell. To a significant
extent, coded telephone conversations could be aligned with the
physical activities of the coconspirators.
C.
On August 30, 2012, the Government provided notice to the
defendants of its intent to call FBI Special Agent Carrie Dayton
6
as an expert. The Government provided Agent Dayton’s resumé, and
stated that she “served as a monitor on the wiretaps, and will
testify as to the meaning of coded references in several of the
calls used by the conspirators, when discussing drug trafficking
over the phone.” J.A. 38. The Government’s disclosure showed
that Agent Dayton had worked as a paralegal and then, for more
than six years, as an attorney, before joining the FBI in May
2004. She thus had eight years of law enforcement experience by
the time of trial. She initially worked in the FBI’s Civil
Rights and White Collar Crime divisions, and joined the Safe
Streets Task Force in November 2007, working narcotics and
violent crime investigations.
Agent Dayton had “observed and [] recognize[d] patterns of
behavior consistent with narcotics trafficking” as a result of
her participation in over 20 investigations. J.A. 57. Agent
Dayton was also involved in over five wiretap investigations,
during which she “listened to thousands of phone conversations
between individuals who participated in or were suspected of”
drug trafficking conspiracies and other crimes. Id. Agent Dayton
attested that she has “gained a working knowledge of drug
language and terminology commonly used by drug dealers” and that
she was “aware of the technique and [has] heard hundreds of
conversations in which narcotics traffickers employ code words
7
to disguise discussions” about drugs. Id. Agent Dayton had not
previously testified as an expert on coded drug language.
Days before the commencement of trial, defendants moved to
exclude the testimony of Agent Dayton on the basis that the
Government failed to provide a sufficient expert disclosure in
conformity with Federal Rule of Criminal Procedure 16(a)(1)(G).
On October 2, 2012, after opening statements, the district court
denied the motion. Referring to whether the Government had
provided a sufficient outline of Agent Dayton’s proposed
testimony, the court stated that,
it appears to me that when a disclosure says she is
going to testify to coded references in transcripts of
calls related to narcotics, clearly, based on the
openings, counsel have understood the government’s
theory to be that references to things like cars and
perhaps girls are in fact references to drugs, that it
does not take any great additional leap of inference
from there to figure out what Special Agent Dayton is
going to testify to.
J.A. 177-78. Accordingly, the district court held that there was
no prejudice to the defense “even if there was something
deficient in the disclosure.” J.A. 178.
D.
On eighteen separate occasions during six days over the two
week trial, the Government called and re-called Agent Dayton to
the stand to testify on the coded language used in recorded
wiretapped calls between the conspirators. From the start,
defense counsel voiced vigorous and repeated objections to Agent
8
Dayton’s qualifications as an expert witness in decoding drug
traffickers’ language. Counsels’ objections continued as the
presentation of her testimony unfolded, specifically based on
Agent Dayton’s failure to conform to recognized methodologies
for such testimony and the Government’s failure to explicitly
demonstrate the existence of an acceptable foundation for many
of her specific interpretations. 2 The district court generally
overruled the defense objections (while sustaining some),
holding that Agent Dayton had “sufficient experience to meet the
standard to be able to offer opinion testimony that might be
helpful to the jury based on . . . her five years of experience,
dozens and dozens of shifts on wiretaps, and thousands and
thousands of calls, as well as her conversations with both
cooperators, witnesses, and other law enforcement officers.”
J.A. 320.
Manifesting a deep familiarity with this Circuit’s settled
guideposts with regard to this type of testimony, the
experienced judge identified early on two potential problems
with Agent Dayton’s testimony: (1) the need to distinguish
between her lay fact testimony based on her personal knowledge,
on the one hand, and her expert opinion testimony based on her
2
It appears, and we presume, that there was an
understanding at trial that an objection made by any one of the
three defense counsel was joined by the others.
9
training and investigatory experience, on the other; and (2)
ensuring that she was testifying on the basis of her experience
and expertise in coded language, and not simply repeating what
cooperators or witnesses told her.
This second point was especially salient because, as Agent
Dayton conceded during voir dire in the presence of the jury,
she had debriefed several cooperating coconspirators in this
very case, including at least one of whom speaks only Spanish,
Garcia’s supplier, Yoni Rodriguez. Thus, it was particularly
apparent at the start of trial (especially as Agent Dayton had
never before testified as an expert) that special care was
required to expose to the jury (and to the defense) the true
bases for Agent Dayton’s “opinions.”
In any event, cognizant of these perils, the district court
issued a cautionary instruction to the jury prior to Agent
Dayton’s testimony. It informed the jury that a distinction
would be made between the agent’s fact and expert opinion
testimony, and that it would not be appropriate for Agent Dayton
to testify to the meaning of a word simply because a witness
told her its meaning. 3
3
The district court told the jury:
The fact that I am determining that she has sufficient
qualifications to offer you opinion testimony, again,
I’m not deciding what weight you give her testimony or
(Continued)
10
how you evaluate it. It’s up to you, as I said at the
beginning, to pay attention to her experience, and her
background, and training, and the reasons that she
gives you for any opinion that she may offer, and then
you decide what weight to give it.
The other thing I want to say is that she may also be
offering more fact testimony, just an ordinary lay
witness or fact testimony about certain matters, and I
have asked counsel to be clear in their questions
which is which.
To the extent she is offering you just fact testimony,
something she actually saw or heard, that should be
clear. To the extent it’s her opinion, based on her
experience and review of these calls, we’ll make that
clear as well, and she will be asked to explain what
the reason for her opinion is.
***
But I want to be clear, any opinion that she may be
offering you about these calls is not to be based on
what somebody, who may or may not have been involved
in this case, told her. Mr. Jones said that means
cocaine, for example.
That’s not the basis of her opinion. That’s not
appropriate. She is not here to just repeat something
that somebody may or may not have said to her when we
don’t have that person here for you to listen to, and
make your own opinion about credibility.
So her opinion, and we will be careful to limit it to
that, is to the extent she has got a basis, on her
experience and training and everything she told you
about yesterday, to have a reason to believe that a
certain reference means something that is not apparent
on its face, she will explain that, and it is up to
you to evaluate it again. But it is not because it is
based on anybody that she may or may not have talked
to in this case about the meaning of certain words.
J.A. 326-28.
11
In the course of the investigation in this case,
investigators had monitored in whole or in part more than 20,000
calls; the Government considered 1,928 conversations pertinent
to the investigation and it played approximately 211 of such
monitored calls, many in Spanish, during the trial. Agent Dayton
testified repeatedly over the course of six days, “interpreting”
words in nearly half the calls played before the jury, including
the English translations of the conversations occurring in
Spanish. The defense made countless objections regarding the
melding of her fact and expert opinion testimony, the agent’s
failure to adhere to her professed methodology, and the absence
of foundations for many of her specific interpretations. While
the district court sustained some objections, 4 for the most part,
4
One notable objection early in Agent Dayton’s testimony
came after she testified as follows after listening to a wiretap
recording:
AGENT DAYTON: In the second line of Mr. Coley
speaking, wherein he says I owe you 200, he is
actually talking about $2,000. In that same sentence,
when he says I have a hundred and 50 for you, he is
actually referring to $1500.
GOVERNMENT: Are these amounts in reference to, based
on your expert opinion, in reference to, these dollar
amounts, in reference to anything in particular?
AGENT DAYTON: These are in reference to – Mr. Powell
has supplied Mr. Coley with heroin, and Mr. –
J.A. 364. Defense counsel objected at this point, arguing that
Agent Dayton had gone “beyond the spectrum of what she is
(Continued)
12
capable of doing” by “opin[ing] as to . . . the general nature
of this particular conversation, and what the conversation
means[.]” J.A. 365. Counsel further argued that “there has been
no foundation or no explanation as to how she came to some of
these conclusions. She is . . . just saying this is what this is
about, and we are listening to these calls isolated, without any
proper context.” Id.
The district court astutely summed up the issue:
The problem is that [Agent Dayton] just said, in
response to your question about how she knows that the
200 is a reference to 2,000, she just said because I
know that Mr. Coley supplied heroin to Mr. Powell.
That is not based on her expertise or the coded
language. She is using fact information that she has
gained otherwise, which is not appropriate.
J.A. 366-67. The prosecutor responded by stating that she was
trying to stay away from the objections raised by
counsel regarding her, Special Agent Dayton testifying
about what she learned from persons in this case, but
it does form the basis, part of the basis of her
opinion. I can certainly elicit that, but then I would
think there’s going to be an objection to her
testifying about that being the basis of her opinion.
J.A. 367-68.
The district court ultimately sustained the objection (as
it did some others along the same vein) after the prosecutor
further stated that “[r]egarding the numbers that Mr. Coley
uses, she is in part relying on the investigation which showed
that Mr. Coley and Mr. Powell met,” to which the district court
responded, “Then it’s hearsay and it’s not an expert opinion.”
J.A. 369.
The fact that the prosecutor hesitated to lay an adequate
foundation for Agent Dayton’s opinions for fear of objection
from defense counsel speaks volumes to the impermissible basis
for that foundation. See also J.A. 375 (district court sustained
objection because Dayton’s testimony that “cousin” meant a
specific individual was on the basis of her personal knowledge,
(Continued)
13
it admitted the bulk of Agent Dayton’s testimony, which was
often elicited through a prosecutor’s insertion of a simple
prologue to a question: “Agent Dayton, in your expert
opinion . . . ” or “Agent Dayton, based on your
expertise . . . .” 5
As mentioned, Agent Dayton’s testimony was interspersed
with the testimony of other investigators. After a 12-day trial,
the jury returned a verdict of guilty on all five counts in
which Garcia was named (one count of conspiracy to distribute
heroin, and four counts of possession with intent to distribute
heroin), but a mistrial was declared as to the two co-
defendants. The district court entered judgment and sentenced
Garcia to 188 months on all counts, to run concurrently.
Garcia timely appealed and we exercise jurisdiction
pursuant to 28 U.S.C. § 1291.
not on expertise); J.A. 452 (district court overruled objection
based on lack of foundation despite term only heard in this
investigation); J.A. 461 (district court overruled objection and
advised Agent Dayton to “rely on what [she] learned prior to
this investigation”); J.A. 573 (district court overruled
objection where foundation for interpretation was that “Mr.
Garcia uses the term the [sic] G. We see him use that in other
calls on this wire to refer to a thousand dollars.”).
5
As we discuss infra n.10, this formulaic approach hardly
cured the problems that the district court anticipated and that
we find actually to have arisen in the course of trial.
14
II.
Garcia presents a number of arguments on appeal regarding
the admissibility of Agent Dayton’s expert testimony. While we
find that the district court did not abuse its discretion in
qualifying Agent Dayton as an expert, we are persuaded that the
district court failed to adequately safeguard against a strong
likelihood of jury confusion between Agent Dayton’s testimony as
an expert witness and as a fact witness, and in ensuring that,
in her capacity as an expert witness, Agent Dayton “reliably
applied” her methodology and adequately set forth the underlying
permissible foundations for her opinions. 6
6
Garcia also challenges the sufficiency of the evidence on
Count 4 (the April 19, 2011 Powell/Montgomery transaction), for
possession of heroin with intent to distribute. Garcia’s
conviction on that count, as on two of the other three of the
substantive counts, was based on an aiding and abetting theory.
We find the evidence was sufficient to prove beyond a reasonable
doubt that Garcia “knowingly associated himself with and
participated in the criminal venture.” United States v.
Winstead, 708 F.2d 925, 927 (citing Nye & Nissen v. United
States, 336 U.S. 613, 619 (1949) (further citations omitted));
see also Rosemond v. United States, 134 S. Ct. 1240, 1245-51
(2014) (explaining aiding and abetting principles).
“[P]articipation in every stage of an illegal venture is not
required, only participation at some stage accompanied by
knowledge of the result and intent to bring about that result.”
United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en
banc) (internal citations omitted). Rodriguez testified that he
sold heroin to Garcia, which Garcia then sold to Powell for
further distribution to customers like Montgomery. The
relationship between Garcia and Powell was established by the
wiretap calls, as well as surveillance of Garcia and Powell
together. Furthermore, on the very day Montgomery was
apprehended in possession of heroin, a conversation between
(Continued)
15
A.
Garcia contends that the district court abused its
discretion in qualifying Agent Dayton as a decoding expert in
the first place, and that therefore the district court erred in
admitting her testimony, without regard to the special dangers
inherent in the use of decoding experts. 7 We disagree.
Garcia and Powell was recorded on Montgomery’s voicemail, in
which Garcia and Powell discussed their drug trafficking plans
as interpreted by Agent Dayton.
We note that even though we find error in the manner in
which Agent Dayton’s testimony was presented to the jury, we
must still consider that testimony in reviewing the denial of a
Rule 29 motion for judgment of acquittal. United States v. Diaz,
300 F.3d 66, 77 (1st Cir. 2002); see also United States v.
Horton, 693 F.3d 463, 482 (4th Cir. 2012) (Davis, J.,
concurring) (discussing the necessity of ruling on appellate
claims of evidentiary insufficiency even in the context of trial
error requiring reversal).
Of course, we intimate no view as to whether upon a retrial
the Government will adduce sufficient evidence to support
conviction as to any count of the indictment.
7
Garcia also argues that the government’s pretrial
disclosures regarding Agent Dayton were insufficient. Federal
Rule of Criminal Procedure 16(a)(1)(G) requires that “[a]t the
defendant’s request, the government must give to the defendant a
written summary of any testimony that the government intends to
use under Rules 702, 703, or 705 of the Federal Rules of
Evidence during its case-in-chief at trial. . . . The summary
provided under this subparagraph must describe the witness’s
opinions, the bases and reasons for those opinions, and the
witness's qualifications.” Garcia maintains that the information
contained in the Government’s September 24, 2012 letter, and
Dayton’s attached resumé, was insufficient to meet this
requirement.
(Continued)
16
We review a district court’s decision to qualify an expert
witness, as well as the admission of such testimony, for abuse
of discretion. United States v. Wilson, 484 F.3d 267, 273 (4th
Cir. 2007). “A court abuses its discretion if its decision is
‘guided by erroneous legal principles’ or ‘rests upon a clearly
erroneous factual finding.’” United States v. McLean, 715 F.3d
129, 142 (4th Cir. 2013) (quoting United States v. Johnson, 617
F.3d 286, 292 (4th Cir. 2010)).
The Federal Rules of Evidence provide that a
witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
In light of our ultimate ruling on the propriety of Agent
Dayton’s testimony, we need not address the adequacy of the
Government’s compliance with Rule 16(a)(1)(G).
17
Fed. R. Evid. 702. In the advisory committee notes following the
2000 amendments to the Rule, there is a pointed discussion on
the use of hybrid witnesses at issue here:
For example, when a law enforcement agent testifies
regarding the use of code words in a drug transaction,
the 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 (emphasis added).
Garcia’s argument that Agent Dayton’s experience was
insufficient to qualify her as a decoding expert, given the
emphasis on experiential knowledge for these types of experts,
misses the mark. We think Fourth Circuit law in this area is
reasonably clear. Wilson, 484 F.3d at 267; see also United
States v. Galloway, --- F.3d ---, ---, No. 12-4545, 2014 WL
1424939, at *4-6 (4th Cir. April 15, 2014) (applying plain error
review).
In Wilson, we reviewed the district court’s admission of a
police investigator’s expert and fact witness testimony; the
investigator’s expertise was in “decipher[ing] the intercepted
communications that were recorded via wiretap” as they “were
full of drug slang and street code[.]” Id. at 273. We found no
abuse of discretion in the district court’s admission of the
18
expert evidence. There, the expert’s qualifications included
nine years spent mostly investigating drug traffickers and
attendance in training programs offered by the DEA, training
which specifically included exposure to drug traffickers’ use of
coded language. Id. at 275-76.
While Agent Dayton certainly has less experience than the
witness in Wilson, and had never before this case been qualified
as an expert, the precise number of years of an investigator’s
experience, or the number of investigations on which she has
worked, is not necessarily dispositive. Every expert has a first
time. It is the quality of Agent Dayton’s experience, especially
her exclusive focus on narcotics trafficking for the preceding
five years, on which the district court properly focused in
finding her qualified as a decoding expert.
Agent Dayton’s job required her “to work in close proximity
with drug users on a daily basis,” United States v. Baptiste,
596 F.3d 214, 218 (4th Cir. 2010); she had “monitored dozens of
wiretaps, listening to thousands of intercepted phone calls in
the process,” United States v. Mack, 495 Fed. App’x 359, 364
(4th Cir. 2012) (internal quotations omitted); and in the
“course of [her] extensive experience dealing with drug
traffickers and confidential informants, [] was able to learn to
understand the vernacular used by drug traffickers.” Wilson, 484
F.3d at 275-76.
19
Garcia also takes issue with Agent Dayton’s explanation of
her methodology. The defendants in Wilson similarly challenged
the investigator’s methodology, claiming that it was “neither
sufficiently explained nor reliable.” 484 F.3d at 273. Agent
Dayton explained her methodology as follows: “I think we see
some common [terms], receipts or paper or clothing terminology.
So[me] of it’s common and some is just in the context of the
conversation. As you listen to the conversation, the language
used doesn’t make sense, and sometimes they switch up code so
the context is all wrong.” J.A. 285. This is very similar to the
witness’s explanation in Wilson. 484 F.3d at 275 (explaining
that the expert relied on “the context of the call” to see the
“pattern that develops.”). While this explanation is not as
coherent as we might wish, given the deferential standard of
review applicable here, it passes muster as an articulation of
an accepted methodology. Agent Dayton also based her opinions in
part on conversations she had with witnesses in other cases who
“would talk about the drug shops and the language that was used
to communicate with one another.” J.A. 294.
Given the similarity between Agent Dayton’s explanation of
her methodology and the methodology we found acceptable in
Wilson, we cannot say that the district court abused its
discretion in qualifying Agent Dayton as an expert. As we have
recognized, “[a] ‘trial judge must have considerable leeway in
20
deciding in a particular case how to go about determining
whether particular expert testimony is reliable.’” Wilson, 484
F.3d at 273 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152 (1999)). Agent Dayton met the requirements for testifying to
the meaning of coded language recorded from the coconspirators’
calls, and adequately explained her methodology. Accordingly, no
abuse of discretion infects the district court’s determination
to accept Agent Dayton as a decoding expert.
B.
Despite the district court’s careful attention to Agent
Dayton’s credentials as a decoding expert, however, we hold that
the agent’s testimony was fraught with error arising from the
problems the district court itself identified early in the
trial: the conflation of Agent Dayton’s expert and fact
testimony, particularly her reliance on her knowledge of the
investigation to support her coding interpretations; her failure
to apply her methodology reliably; and last, her failure to
state on the record an adequate foundation for very many of her
specific interpretations. Moreover, because Agent Dayton’s
testimony was so extensive and most likely highly influential in
the jury’s evaluation of the Government’s case against Garcia,
we are constrained to hold that these flaws deprived Garcia of a
fair trial, i.e., that the missteps were not harmless, and thus
require vacatur of Garcia’s convictions.
21
1.
Garcia contends that there were inadequate safeguards to
protect the jury from conflating Dayton’s testimony as an expert
and fact witness. We agree.
We have recognized that individuals who testify as expert
and fact witnesses can cause jury confusion, and such a manner
of proceeding is only “acceptable where ‘the district court took
adequate steps . . . to make certain that [the witness’s] dual
role did not prejudice or confuse the jury.’” Baptiste, 596 F.3d
at 224 (quoting Wilson, 484 F.3d at 278 n.5) (alternations in
original). Such safeguards might include requiring the witness
to testify at different times, in each capacity; giving a
cautionary instruction to the jury regarding the basis of the
testimony; allowing for cross-examination by defense counsel;
establishing a proper foundation for the expertise; or having
counsel ground the question in either fact or expertise while
asking the question. Id. at 224 (citing Wilson, 484 F.3d at 278
n.5 and United States v. Farmer, 543 F.3d 363, 370-71 (7th Cir.
2008)).
While a cautionary instruction might be sufficient in many
instances to protect against jury confusion and resulting
prejudice, see Galloway, --- F.3d at ---, 2014 WL 1424939 at *5-
22
6, 8 we are persuaded that the instruction given here was
insufficient to mitigate the potential for prejudice.
The district court represented to the jury that Government
counsel would “be clear in their questions” whether they were
asking Agent Dayton to testify based on the facts versus her
expertise. J.A. 327. Despite this direction, the Government
failed to do so: there were repeated instances of Agent Dayton
moving back and forth between expert and fact testimony, with no
distinction in the Government’s questioning or in Agent Dayton’s
answers. And this was true despite the fact that the Government
recalled Agent Dayton to the stand eighteen times. In light of
the court’s earlier assertion that counsel would clearly
distinguish the two types of testimony, the jury reasonably
might have assumed that all of Agent Dayton’s testimony in
response to questions asking for her expert opinion was indeed
based on her decoding expertise.
8
In Galloway, the district court repeatedly instructed
counsel to be clearer in the demarcation between fact and lay
opinion testimony. See, e.g., Joint Appendix at 472-75, 572-73,
2014 WL 1424939, ECF No. 59. There, the district court generally
did not allow the expert to testify about the meaning of
individual words in particular conversations, but rather only
permitted the expert to testify whether, in his expert opinion,
coded language was used in the conversation at issue as a
general matter. There was little opportunity, then, for the
expert’s participation in the underlying investigation to
encroach upon, enhance, or improperly bolster the expert
testimony of that witness.
23
Our review of the record reveals multiple occasions in
which the Government prompted Agent Dayton to assert information
garnered from her participation in the investigation, having
nothing to do with her ostensible decoding expertise. For
instance, in response to a question about any coded language on
the call “based on [her] expertise,” Dayton answered that
“[w]hen Mr. Powell uses the term show time, he is letting Mr.
Coley know he has heroin.” J.A. 371-72. Immediately after this
exchange, without any further explanation of the term “show
time” or warning that they were shifting away from Agent
Dayton’s expertise to her factual knowledge, the prosecutor then
asked Agent Dayton: “Now how were Ms. Montgomery and Mr. Coley
identified as the participants in the calls that we’ve just seen
or heard?” J.A. 372. Agent Dayton’s response had nothing to do
with her expertise, and everything to do with her factual
knowledge as an investigator in this case.
It is apparent even from the Government’s briefing that
Agent Dayton used her personal knowledge of the investigation to
form (not simply to “confirm”) her “expert” interpretations:
“Special Agent Dayton also looked to the actual seizures of
heroin in this case to form the basis of her expert opinion.”
Appellee Br. 46 n.8.
Notably, the Government points to a call in which Agent
Dayton interpreted “a hundred forty five point,” to mean “145
24
grams of heroin,” J.A. 885, which is confirmed with evidence
that police seized 145 grams of heroin from one of the
coconspirators on the call. But unlike the display of expertise
we endorsed in United States v. Johnson, this is not Agent
Dayton “applying [her] expertise, derived over many years and
from multiple sources, to interpret the transcripts of phone
conversations.” 587 F.3d 625, 636 (4th Cir. 2009). Instead, this
exemplifies occasions, and we discern many of them, in which
Agent Dayton simply substituted information gleaned from her
participation in the investigation (including post-indictment
debriefings of participants in the conspiracy) for ostensible
expertise. 9 For this, the Government need not have called a
“decoding” expert at all: simply pointing to the seizure of 145
grams of heroin, and then the repeated mention of “145” in this
call clearly would have been enough for any juror to make the
connection. But cloaking this connection in the guise of expert
testimony goes beyond what is contemplated under Federal Rule of
Evidence 702, which requires an expert to “reliably appl[y] the
principles and methods” for which she was qualified as an
9
But even if she did not, the record is bereft of evidence
that she did not, due largely to the Government’s deliberate
failure to lay an adequate foundation for many of her opinions.
For our purposes, this absence of clarity as to the source of
her opinions amounts to the same thing as if she had no
expertise at all.
25
expert. The Rule contemplates that an expert’s opinion testimony
will be “helpful to the jury,” not merely helpful to the
prosecutor as transmutations of simple fact testimony. Cf.
Wilson, 484 F.3d at 276-78 and nn.4 and 5 (emphasizing need for
the district court to enforce methodological, foundational, and
helpfulness standards in admitting testimony of decoding expert,
and affirming convictions under plain error review because,
despite district court’s erroneous admission of some testimony,
expert’s “methodology was reliably applied in the vast majority
of instances”) (emphasis added).
This issue actually surfaced early in the trial. During the
Government’s voir dire of Agent Dayton in its effort to satisfy
the district court that the agent had genuine “expertise,” the
following colloquy occurred:
GOVERNMENT: Special Agent Dayton, regarding the
wiretaps in this case, you have spoken to at least
three members of the organization?
DEFENSE: Objection, Your Honor, leading.
THE COURT: Overruled.
GOVERNMENT: Is that correct?
AGENT DAYTON: At least three, maybe more.
GOVERNMENT: Maybe more. To confirm your understanding
of the coded language used in this case?
AGENT DAYTON: Yes.
26
J.A. 296. Later, the defense had Agent Dayton identify the three
coconspirators whom she had debriefed, and she stated the
following: “Diego Amparo, Yoni Rodriguez, Nancy Feliciano. I’m
trying to think of the other folks who have come in. I’m sorry.
Those are the three I believe we discussed code with.” J.A. 298.
In light of this significant ingredient in Agent Dayton’s
expertise, it was incumbent upon the Government to demonstrate
that Agent Dayton was not merely channeling information and
statements by non-testifying participants in the conspiracy into
the trial record. 10
10
In what is truly a curious argument, the Government
contends that because Agent Dayton “did not offer any expert
opinion regarding any calls by Yoni Rodriguez, and discussed
only a handful of calls involving Diego Amparo and Nancy
Feliciano,” Appellee Br. 46, there should be no concern about
Agent Dayton’s ostensible methodologically sound expertise.
Exactly the opposite is true. There is no discernible
correlation favorable to the Government between Agent Dayton’s
debriefing of coconspirators whose calls she interpreted and
those whose calls she did not interpret. The point is that it
was one conspiracy and there is no reason to believe that
Rodriguez, in particular, would have been unable to provide
substantial information concerning the operational details of
the conspiracy. And in fact, he did so in his testimony,
including “interpretations” of many of the same words Agent
Dayton interpreted. In short, the funneling of fact information
learned from those inside the conspiracy and the offer of expert
testimony was melded in a highly prejudicial manner in this
case.
Relatedly, the Government seems earnestly to contend that
simply by including in its questions to Agent Dayton that the
agent answer only based on her “expert opinion” somehow
insulates the agent’s testimony from ordinary scrutiny under the
settled principles of Daubert v. Merrell Dow Pharm., Inc., 509
(Continued)
27
In Johnson, we expressed wariness over this exact problem,
and cautioned against “[a]llowing a witness simply to parrot
out-of-court testimonial statements of cooperating witnesses and
confidential informants directly to the jury in the guise of
expert opinion” as it “would provide an end run around
Crawford.” 587 F.3d at 635 (internal quotation marks omitted).
In Crawford v. Washington, the Supreme Court held that the
Confrontation Clause permits the introduction of “[t]estimonial
statements of witnesses absent from trial . . . only where the
declarant is unavailable, and only where the defendant has had a
prior opportunity to cross-examine.” 541 U.S. 36, 59 (2004). Of
the three co-conspirators Agent Dayton specifically identified
as contributing to her “understanding of the coded language used
in this case,” though by her own admission there may have been
more than three, only one testified at trial. We explained that
in the face of such risks, “[t]he question is whether the expert
is, in essence, giving an independent judgment or merely acting
U.S. 579 (1993), and its progeny and Rule 702. The Government is
wrong. It is bootstrapping of the worst kind to suggest to a
jury that it should believe that everything a witness says is
based on expertise gained from independent knowledge and
experience in the absence of a record demonstrating as much. We
would never permit counsel calling a physician or an engineer or
an expert tightrope artist to proceed in such a manner; there is
scant reason we should allow a prosecutor calling law
enforcement officers as experts to do so.
28
as a transmitter for testimonial hearsay.” Johnson, 587 F.3d at
635.
Here, we cannot say that Agent Dayton was giving such
independent judgments. While it is true that she never made
“direct reference to the content of [her] interviews,” id., this
could just as well have been the result of the Government’s
failure to elicit a proper foundation for Agent Dayton’s
interpretations. See J.A. 367-68; supra 12-14 n.4 (discussing
the prosecutor’s statement in response to an objection for lack
of foundation, that she was “trying to stay away from the
objections raised by counsel regarding her, Special Agent Dayton
testifying about what she learned from persons in this case, but
it does form the basis, part of the basis of her opinion. I can
certainly elicit that, but then I would think there’s going to
be an objection to her testifying about that being the basis of
her opinion.”).
Although Agent Dayton asserted that her after-the-fact
debriefing of coconspirators who had commenced cooperating with
the prosecution served to “confirm[]” her independent
assessments of the meanings to be attributed to many words, it
was imperative that the trial record demonstrate this sequence
with a measure of clarity. The record is devoid of evidence that
this was, in fact, the sequence of Dayton’s analysis, to
Garcia’s prejudice.
29
2.
We find a second, equally fundamental flaw in the
presentation of Agent Dayton’s testimony in addition to the
above infirmity: the lack of foundations laid for each
interpretation testified to, so much so that we are compelled to
conclude that the record fails to demonstrate the requisite
reliability in Agent Dayton’s execution of her claimed
methodology. Call Number 214, referenced above regarding Agent
Dayton’s interpretation of the term “show time” to mean
“heroin,” is an illustrative example of the utter absence of any
foundation for more than simply a few of her coding
interpretations. No further explanation regarding the term “show
time” was given – Agent Dayton did not explain that she had seen
that term used in this investigation, let alone in her previous
experience. There was no explanation as to what, in the context
of the call or otherwise, led her to believe that “show time”
meant “heroin.” 11
11
And even where Agent Dayton stated (as she did from time
to time) that a term had been seen in other calls during the
investigation, this assertion alone is no explanation for the
threshold interpretation. Indeed, the fact that the expert has
heard a term in other calls during the investigation does not,
by itself, explain how the expert knows what the term means. As
discussed in text regarding the “interpretation” of numerals,
the same term means different things at different times, even in
the same conspiracy. The Government failed to show how Agent
Dayton reliably leapt these lexicographical crevasses.
30
One significant indication of Agent Dayton’s failure to
adequately explain her methodology is her lack of explanation as
to how her methodology was affected by the fact that many of the
telephone conversations were in Spanish. As Agent Dayton
explained, the context of a conversation is an important factor
when decoding suspected drug language. Although the jury heard
English language transcripts of the actual call recordings read
aloud, Agent Dayton provided no insight as to what steps, if
any, she took to ensure that the context of the conversation was
not lost or meaningfully altered in the process of translating
the calls from Spanish to English.
The problem with this lack of foundation and reliably
applied methodology becomes even more apparent when examining
the instances when Agent Dayton’s interpretations are
inconsistent with each other. For example, she testified that
the use of “2” by the conspirators means either $200, J.A. 600,
or $2,000, J.A. 533. In fact, in the explanation for
interpreting “2” to mean “$2,000,” Agent Dayton testified that
drug traffickers “drop zeros [sic] to make the numbers sound
smaller.” Id. This would be an explanation for both of these
interpretations, and there is no indication in the record why
Agent Dayton’s expert methodology reasonably leads her to
conclude that the same term means $200 in one instance, but
$2,000 in another.
31
A like inconsistency is seen with regard to the number “5”:
Agent Dayton first interprets this as “$5,000,” J.A. 854, and in
another instance as 500 grams of heroin, J.A. 925. While there
might very well be an explanation for this, based on Agent
Dayton’s expertise, she did not explain it at trial to the jury,
and it is not evident from the record what that explanation
would be.
In another instance, Agent Dayton testified that, in her
expert opinion, “590” was code for 590 grams of heroin. J.A.
774. She gave no explanation for the basis of this opinion, and
importantly, her testimony that the number 590 actually meant
590 is inconsistent with the only methodology she offered for
how she decoded the numbers heard in the calls: that the dealers
spoke in code about numbers by dropping the zeroes.
In several instances, Agent Dayton “decoded” words and
phrases that needed no expert translation at all since the
meaning was either apparent on its face or apparent with
contextual information that any fact witness could have
provided. See, e.g., J.A. 406-09 (testimony that the phrases
“first one” and “second one” were code for different deliveries
of heroin); J.A. 410, 412 (testimony that the phrase “over
there” was code for Baltimore); J.A. 854, 857, 875, 1190
(testimony that the word “stuff” was code for heroin); J.A. 940
(testimony that the word “number” was code for price in the
32
phrase “the number they gave me was too high. We’re, we’re on
the number he told me.”); J.A. 958 (testimony that the word
“number” was code for price in the phrase “The important thing
is the quality and a good number.”) This purported “decoding”
of language that did not actually need decoding casts further
doubt on whether Agent Dayton was reliably applying her
methodology. Unlike in Wilson, where we found that the expert
“applied his methods and principles reliably in the vast
majority of his testimony,” 484 F.3d at 277, we cannot say the
same is true of the record before us here. The record is replete
with instances of Agent Dayton providing no explanation for her
interpretation, other than a token reference to her expertise in
the Government’s framing of questions. While the district court
was appropriately careful in its initial examination of Agent
Dayton’s qualifications to testify as an expert, it failed to
maintain its “gatekeeper” role throughout that testimony, Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997), and the
Government did little, if anything, to protect the generous
ruling it had obtained from the district court from morphing
into error.
III.
The Government contends that even if it was error for the
district court to admit Agent Dayton’s testimony as it did, the
error was harmless because there was enough evidence outside of
33
Agent Dayton’s testimony to justify the jury’s conviction of
Garcia on all five counts. We disagree with the Government’s
harmlessness metric.
When nonconstitutional error has been established in a
criminal case, “the Government must demonstrate that the error
did not have a ‘substantial and injurious effect or influence in
determining the jury's verdict.’” United States v. Curbelo, 343
F.3d 273, 278 (4th Cir. 2003) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). The Government points to
other evidence presented at trial, relying on the principle that
“where there is a significant amount of evidence which
inculpates a defendant independent of the erroneous testimony,
the error is considered harmless.” Johnson, 617 F.3d at 295
(citing United States v. Banks, 482 F.3d 733, 741-42 (4th Cir.
2007)). The Government’s reliance on the dictum from Johnson, in
which we refused to find the error harmless, is seriously
misplaced. 12
12
In Johnson, the prosecution persuaded the district court
to admit the decoding expert’s opinion testimony as lay opinion
evidence under Rule 701. We found error in that ruling, 617 F.3d
at 292-93, and we declined to accept the prosecution’s fallback
contention that the testimony could have been admitted as expert
opinion evidence under Rule 702, id. at 294-95, and we declined
to find that the error was harmless. The case at bar is, like
Johnson, but another example of the vagaries in theoretical,
methodological, and foundational challenges such testimony
engenders and why, when not properly managed, there is an
increased likelihood of error, perhaps harmless in some cases,
(Continued)
34
Indeed, just as in Johnson, the Government’s case here is
not ironclad. The Government first points to the testimony of
Rodriguez, who testified that he regularly sold heroin to
Garcia, interpreted certain terms, and no doubt was an
impressive witness. Rodriguez’s credibility was put into
question, however, not least because his testimony was in return
for sentencing considerations by the Government in a New York
prosecution in which he faced a maximum potential sentence of
life in prison and, in addition or alternatively, deportation to
the Dominican Republic, perhaps leaving behind his American
citizen spouse. Of course, the jury was unquestionably entitled
to credit the testimony of Rodriguez, every bit as much as the
Government was entitled to call him as its witness.
Nevertheless, Rodriguez’s testimony required searching scrutiny,
for, as the prosecutor explained to the jury in its closing
argument, “when you’re trying the devil, sometimes you’ve got to
go to hell to get your witnesses.” J.A. 1735.
The Government also points to police surveillance of the
coconspirators, in Baltimore and elsewhere, but save one
perhaps not in others. Cf. Galloway, --- F.3d at ---, 2014 WL
1424939 at *4-6 (affirming convictions after admission of
decoding expert testimony upon plain error review); United
States v. Hassan, 742 F.3d 104, 135 (4th Cir. 2014) (affirming
after finding proper admission of lay opinion testimony).
35
instance when Garcia was seized while directly involved with
drugs in April 2009, these observations hold no determinative
weight absent the addition of the illuminating wiretap calls and
the coded language referring to drugs. Each of the other counts
for possession, and Garcia’s involvement in the conspiracy,
rests on the connection between various individuals that was
only established through the hundreds of calls played at trial.
And while the contents and context of many of these calls
indisputably point to illegal activity, we are unable to hold
that the jury was unaffected by Agent Dayton’s unadorned
interpretations.
These fundamental flaws are exemplified in the very piece
of evidence the Government points to against Garcia in its
harmlessness argument: Feliciano’s call to Garcia after drugs
were seized from her bags at a travel plaza. In testifying about
that call, between Feliciano and Garcia, Agent Dayton opined
that the term “stuff” was “code for heroin.” J.A. 1190. As with
so much of Agent Dayton’s testimony, no foundation was laid, and
there was no explanation for the coding interpretation, leaving
us to speculate that perhaps the basis of her opinion was the
fact that the agents had just seized 500 grams of heroin from
Feliciano. Without the remotest effort by the Government to
justify such testimony under Rule 702, Agent Dayton’s “expert
opinion” was little more than an expert veneer glossed on an
36
item of evidence, e.g., the meaning of the term “stuff,” that
the jury was eminently able, if it so chose, to find the meaning
of for itself. But the jury was deprived of an opportunity to
put to use its commonsense, mature judgment by the Government’s
gilding of the expert witness lily.
Even if there was more uncompromised evidence, as Garcia
points out, this Court’s inquiry is not “‘merely whether there
was enough [evidence] to support the result, apart from the
phase affected by the error. It is rather, even so, whether the
error itself had substantial influence.’” Curbelo, 343 F.3d at
286 (quoting Kotteakos, 328 U.S. at 765). Here, in a trial
spanning twelve days, Agent Dayton testified on six different
days, recalled to the stand eighteen times. From the beginning
of the trial to the end of the trial, the calls and the meaning
of the words used in those calls were the centerpiece of the
Government’s case. There was little direct evidence connecting
Garcia to three of the four actual possession charges, and law
enforcement never observed Garcia actually exchanging drugs or
money with any coconspirators. We cannot find Agent Dayton’s
testimony harmless under the circumstances.
IV.
In Wilson, we criticized defense counsel for failing to
react aggressively to nudge the district court to better
exercise its “gatekeeping” responsibilities in respect to a law
37
enforcement witness decoding expert. Wilson, 484 F.3d at 278 n.5
(“Appellants deserve some of the blame for those rare instances
where improper testimony slipped through the gate’s cracks.”).
Here, no such scolding is appropriate. Garcia timely and
repeatedly objected regarding the foundational sufficiency and
methodological reliability of the agent’s expert testimony, and
he specifically pointed to the risk of prejudice arising from
the agent’s dual capacity as both an expert and fact witness.
Counsel objected early and often, always respectfully and, on
occasion, with success. But even when the district court
sustained some objections (after a bench conference), the
Government would often “move on” to its next question or its
next area of interest, leaving prejudicial effects hanging in
the air. Although here, as usual, the quantum of prejudice is
not susceptible of exact measurement, we are persuaded that
Garcia has established his entitlement to relief.
For the reasons set forth above, the judgment is vacated
and the case is remanded for further proceedings not
inconsistent with this opinion.
VACATED AND REMANDED
38