United States v. Tanya Mack ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4712
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TANYA VALENCIA MACK,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00348-WDQ-2)
Argued: September 21, 2012 Decided: October 18, 2012
Before WILKINSON and DAVIS, Circuit Judges, and Max O. COGBURN,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Wilkinson wrote the
opinion, in which Judge Davis and Judge Cogburn joined.
ARGUED: William Lawrence Welch, III, Baltimore, Maryland, for
Appellant. 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Unpublished opinions are not binding precedent in this circuit.
WILKINSON, Circuit Judge:
Tanya Valencia Mack challenges her conviction for
conspiring to distribute and to possess with intent to
distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
846 on various grounds. In particular, she argues that the
district court erred in (1) admitting expert testimony regarding
the use of coded language on government wiretaps, (2) allowing a
prosecution witness to mention a utility bill for Mack’s
residence, and (3) refusing to define “reasonable doubt” in its
jury instructions. For the reasons that follow, we reject these
challenges and affirm Mack’s conviction.
I.
A.
In January 2008, the Harford County Narcotics Task Force
(“Task Force”) began to investigate an alleged conspiracy to
distribute cocaine involving Mack, as well as her sister, Candis
Unita Mack (“Candis”); her brother, Winston Charles Mack
(“Winston”); and her boyfriend, Fernando Alexander Settles
(“Settles”). As part of its investigation, the Task Force
obtained authorization from the Circuit Court for Harford
County, Maryland, to intercept telephone calls placed to and
from all the conspirators’ mobile telephones, including Mack’s.
Between January and March 2008, the Task Force intercepted
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thousands of calls, some of which contained coded references to
cocaine and the narcotics trade.
The Task Force also conducted visual surveillance of Mack
and her coconspirators. For example, on one occasion, Task
Force members observed Mack meeting with one individual, whom
the police stopped shortly thereafter, discovering cocaine in
his vehicle. Task Force members also observed Mack regularly
coming from and going to a particular house in Abingdon,
Maryland, which they concluded was Mack’s residence. Indeed,
after the police discovered 250 grams of cocaine on Settles’s
person during a traffic stop and arrested him for cocaine
possession, the driver of the vehicle in which Settles had been
travelling called Mack to say that he and Settles had been on
their way to the Abingdon house to see Mack when they were
pulled over.
Based on the intercepted calls and the surveillance, the
Task Force obtained a warrant to search the Abingdon house. The
Task Force executed the warrant on March 5, 2008, recovering the
mobile telephone on which Mack had made and received the
intercepted calls; a digital scale with cocaine residue;
inositol, a cutting agent; and baking soda. Mack was present
during the search, and the Task Force arrested her at its
conclusion.
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A federal grand jury indicted Mack -- along with her
sister, brother, boyfriend, and a fourth codefendant -- on one
count of conspiring to distribute and to possess with intent to
distribute fifty grams or more of cocaine base and 500 grams or
more of cocaine powder in violation of 21 U.S.C. §§ 841(a)(1)
and 846.
B.
Mack was tried before a jury in the U.S. District Court for
the District of Maryland. At trial, the prosecution called as
an expert witness Detective Sean Marston, a member of the Task
Force who had participated in the investigation of Mack and her
coconspirators. Specifically, the prosecution offered Marston
“as an expert witness with regard to the methods and practices
of drug traffickers and drug conspiracies, with regard to
quantities, packaging, prices, and distribution of controlled
substances, as well as the interpretation of coded phone
language and conversations that occur over wiretaps.” To
establish his qualifications as an expert on these topics,
Marston testified that he had served as a police officer for
more than thirteen years; that he had previously served as a
task-force officer assigned to the Drug Enforcement
Administration; that he had monitored wiretaps dozens of times,
listening to thousands of drug-related conversations in the
process; that, as a result of his experience, he was familiar
4
with the code words and phrases used by narcotics dealers and
purchasers; that he had served as an affiant on the wiretap
applications for the telephones used by Mack and her
coconspirators and had listened to thousands of their telephone
calls; and that the judge presiding over Mack’s trial had
previously accepted him as an expert in interpreting coded drug-
related conversations in the joint trial of Mack’s brother and
boyfriend.
Although Mack’s trial counsel did not object to Marston’s
testifying as an expert on the general practices and methods of
the drug trade or on the details of the distribution of
narcotics, he did object to Marston’s testifying as an expert in
interpreting coded drug-related conversations. Mack’s counsel
noted that Marston had taken only “high school English, high
school Spanish”; that he was “not a linguist”; and that he was
“not a cryptographer or a cryptologist.” The district court
overruled this objection, deeming Marston adequately qualified
as an expert in interpreting coded drug-related conversations
based on his extensive experience with the drug trade.
As the prosecution proceeded to play recordings of a number
of the intercepted telephone calls for the jury, Marston
identified various words and phrases on the recordings as coded
references to drugs or the drug trade. For example, after
learning that the police had seized one kilogram of cocaine from
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Candis during a traffic stop, Mack had called another relative
to discuss Candis’s arrest, and at one point during the
conversation, the phrase “the majority” was used. Marston
construed this phrase to mean that Mack had contributed most of
the money that had been used to purchase the seized kilogram of
cocaine. In another intercepted call, Mack instructed Winston
to obtain baking soda and to “cook six plates of food,” which
Marston interpreted as a reference to six ounces of crack
cocaine. The jury also heard conversations between Mack and
unidentified callers in which the phrases “both kind” and
“playing hard, hard, playing basketball” were used. Marston
interpreted the first phrase as a reference to powder and crack
cocaine and the second as a reference to 3.5 grams of cocaine.
In cross-examining Marston, Mack’s counsel noted that
Marston would often interpret a particular word -- say, “food” -
- as a coded reference to cocaine in one conversation only to
ascribe an ordinary, innocent meaning to the very same word in
another conversation. To illustrate these discrepancies, Mack’s
counsel began to play recordings of conversations that Marston
had not identified as containing coded language, prompting the
prosecution to challenge their relevance. Besides his initial
objection to Marston’s qualifications as an expert in
interpreting coded drug-related conversations, however, Mack’s
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counsel never objected to any of Marston’s specific
interpretations.
The prosecution also called Detective Aaron David Penman to
testify about the search of the Abingdon house and Mack’s arrest
there. When asked by Mack’s counsel on cross-examination
whether he had been able to determine who owned the Abingdon
house by, for example, checking Maryland State Department of
Assessments and Taxation records, Penman testified that he was
sure he had checked the records but that he could not recall the
result of that inquiry. On redirect examination, the
prosecution asked Penman whether he had performed a “utilities
check” on the house before applying for a search warrant, to
which Penman responded that he had done so, finding a utility
bill for the house that was in Mack’s name. Mack’s counsel
objected that Penman’s reference to the utility bill contained
inadmissible hearsay, but the district court overruled the
objection on the ground that the prosecution was asking Penman
merely to “report the result of his investigation and state
that.”
Before the jury retired to deliberate, Mack’s counsel asked
the district court to define the term “reasonable doubt” in its
jury instructions, but the district court denied the request.
Instead, the district court instructed the jury merely that it
7
had to find Mack guilty beyond a reasonable doubt, leaving the
term undefined.
The jury convicted Mack on the conspiracy charge, and the
district court imposed a sentence of 240 months’ imprisonment,
ten years of supervised release, and a $100 special assessment.
This appeal followed.
II.
Mack first argues that the district court erred in allowing
Marston to testify as an expert in interpreting coded drug-
related conversations. Federal Rule of Evidence 702, which
governs the admissibility of expert-witness testimony, requires
that a witness be “qualified as an expert by knowledge, skill,
experience, training, or education.” If so qualified, the
witness
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.
Fed. R. Evid. 702.
On appeal, Mack contends that Marston’s testimony violated
Rule 702 in several ways. First, she claims that “Marston
lacked sufficient knowledge, skill, experience, training, or
8
education either to opine that certain apparently ordinary
language was coded language or to interpret the unidentified
code.” Second, she contends that Marston’s testimony “was not
the product of reliable principles and methods” and that Marston
“did not apply the principles and methods reliably to the facts
of the case.”
We review evidentiary rulings to which a defendant objected
at trial simply for abuse of discretion, whereas a defendant
challenging an evidentiary ruling for the first time on appeal
must also satisfy the additional requirements of the “plain
error” standard. United States v. Olano, 507 U.S. 725, 732
(1993).
A.
Mack’s counsel fairly presented to the district court his
first objection to Marston’s testimony -- namely, that Marston
was not sufficiently qualified as an expert in interpreting
coded drug-related conversations -- when he noted that Marston
had no training as a “linguist” or as a “cryptographer” or
“cryptologist.” We thus review the district court’s ruling on
this objection, like any other ruling on a properly preserved
objection concerning expert testimony, for abuse of discretion.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); United
States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (citing
United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006)).
9
“A court has abused its discretion if its decision is guided by
erroneous legal principles or rests upon a clearly erroneous
factual finding.” Johnson, 617 F.3d at 292 (internal quotation
marks omitted) (quoting Brown v. Nucor Corp., 576 F.3d 149, 161
(4th Cir. 2009)).
The district court in no way abused its discretion in
holding that Marston was adequately qualified as an expert in
interpreting coded drug-related conversations. As the text of
Rule 702 itself indicates, a witness can be “qualified as an
expert” on a particular topic by virtue of his “experience” as
well as more formal “training.” In accordance with this
principle, this Court has held on multiple occasions that a law-
enforcement officer can be qualified as an expert in
interpreting coded drug-related conversations simply by virtue
of his “extensive experience” with the narcotics trade. Wilson,
484 F.3d at 275; see also Johnson, 617 F.3d at 294; United
States v. Baptiste, 596 F.3d 214, 222 n.5 (4th Cir. 2010).
Marston undoubtedly had “extensive experience” with the
narcotics trade in general and with interpreting coded drug-
related conversations in particular. At the time he testified
at Mack’s trial, Marston had served with the Harford County
Sheriff’s Department for thirteen years; been the affiant for
four wiretap applications, including the application in Mack’s
case; purchased drugs as an undercover officer; and monitored
10
“[d]ozens” of wiretaps, listening to “thousands” of intercepted
phone calls in the process, including “thousands” of calls
intercepted in the Mack investigation. Through all this
experience, Marston became familiar with the jargon used by
narcotics dealers. A veteran law-enforcement officer with
extensive experience in narcotics investigations, Marston was
clearly qualified to testify as an expert in interpreting coded
drug-related conversations, and the district court did not abuse
its discretion in so ruling.
B.
Mack’s next challenge to Marston’s testimony concerns not
Marston’s general qualifications, but how he applied them in
interpreting particular words and phrases used in the
intercepted conversations. Specifically, Mack argues that, even
if Marston was generally qualified as an expert, and even if his
testimony was ultimately based on “reliable principles and
methods,” he “did not reliably apply the principles and methods
to the facts of the case” because he did not adequately explain
“how [he] determined when apparently ordinary language did and
did not require his interpretation” or “how he determined
specific meanings from vague language.” We reject this argument
for the very simple reason that Mack’s counsel never presented
it to the district court, but rather raises it for the first
time on appeal.
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1.
Although this Court has held that an expert witness must
adequately explain why he interprets certain words and phrases
in wiretapped conversations as coded references to drugs or the
drug trade, see Johnson, 617 F.3d at 294-95; Wilson, 484 F.3d at
276-77, we have also held that a defendant must apprise the
district court of any inadequately explained interpretations in
order to preserve his objections to them for appeal. As a
general matter, to preserve a claim that a district court erred
in admitting certain evidence, a party must, “on the record: (A)
timely object[] or move[] to strike; and (B) state[] the
specific ground, unless it was apparent from the context.” Fed.
R. Evid. 103(a)(1). We have thus held that a defendant forfeits
his claim that an expert witness inadequately explained his
interpretations of coded drug-related conversations unless he
objected at trial to the specific interpretations he contends
were unsupported. See Wilson, 484 F.3d at 276, 278 n.4. To
require any less notice would be to subvert district courts’
“‘gatekeeper’ role in screening expert testimony,” id. at 278
n.4 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142
(1997)), and to require appellate judges to function as trial
judges, a role for which they are ill-suited. Thus, only where
a defendant made “objections . . . which were sufficient to
provide the district court with notice of the grounds for the
12
objection” will this Court treat the objections as properly
preserved for appeal. Johnson, 617 F.3d at 292 n.6.
Mack’s counsel did not afford the district court adequate
“notice of the grounds for the objection” that Mack now presses
on appeal. When the prosecution first called Marston, Mack’s
counsel objected that Marston had studied only “high school
English, high school Spanish,” and that he was “not a linguist”
or “a cryptographer or a cryptologist.” Given that Marston had
yet to interpret a single intercepted conversation for the jury,
the district court quite understandably construed this objection
to go to Marston’s general qualifications as an expert in
interpreting coded drug-related conversations rather than to the
adequacy of his explanations. And once the prosecution began to
play recordings of a number of the intercepted conversations,
Mack’s counsel never objected to a single one of Marston’s
specific interpretations.
To be sure, at one point, Mack’s counsel complained that
Marston had provided “no explanation” for why he identified some
seemingly ordinary words and phrases as coded references to
drugs or the drug trade but not others. But Mack’s counsel made
this statement while explaining his cross-examination strategy
in a sidebar with the district court, after the prosecution had
questioned the need to play multiple recordings of intercepted
conversations that concededly did not contain coded language.
13
Not once did Mack’s counsel object to the district court that
Marston had inadequately explained his interpretations. He thus
did not properly preserve the claim Mack now presses on appeal -
- namely, that Marston “did not reliably apply the principles
and methods to the facts of the case.”
2.
We thus review Mack’s claim under the familiar plain-error
standard. Under this standard, a criminal defendant must show
that the district court made “[1] an ‘error’ [2] that is ‘plain’
and [3] that ‘affect[s] substantial rights.’” Olano, 507 U.S.
at 732 (last alteration in original). An error “affects
substantial rights,” in turn, if it was prejudicial -- that is,
if it “affected the outcome of the district court proceedings.”
Id. at 734. A defendant bears the burden of showing that any
forfeited error was prejudicial. Id. But even if a defendant
discharges this burden, “the decision to correct the forfeited
error [remains] within the sound discretion of the court of
appeals,” discretion the court should not exercise “unless the
error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Id. at 732 (second
alteration in original) (quoting United States v. Young, 470
U.S. 1, 15 (1985)).
Even if the district court erred in admitting some of
Marston’s interpretations of the intercepted conversations, Mack
14
cannot show that this error affected her “substantial rights.”
The prosecution introduced ample other incriminating evidence to
support her conviction. For one, while Marston admittedly
failed to explain some of his interpretations, he adequately
explained a number of others, and the jury could have deemed the
explained interpretations, when combined with the prosecution’s
other evidence, sufficient to find Mack guilty on the conspiracy
charge beyond a reasonable doubt. See Wilson, 484 F.3d at 277-
78 (distinguishing adequately explained and unexplained
interpretations for purposes of plain-error review). Moreover,
some incriminating conversations required no interpretation at
all, as when an individual called Mack to say that he and
Settles had been driving to Mack’s house in Abingdon when the
police pulled them over and arrested Settles for possessing
cocaine. Even more significant, the intercepted conversations
led the police to search Mack’s home, where they found not only
the mobile phone on which Mack had made and received many of the
intercepted calls, but also a digital scale with cocaine
residue; inositol, a cutting agent; and baking soda. Although
Mack contests the admissibility of Marston’s testimony
interpreting the intercepted conversations, she does not deny
that these conversations provided the police with the probable
cause needed to obtain a search warrant for her home. Finally,
a number of other detectives testified about their surveillance
15
of Mack, including one instance where they observed her meeting
with an individual who was found shortly thereafter with cocaine
in his vehicle. Taken together, all this other evidence
supports the jury’s decision to convict Mack on the conspiracy
charge. Whether or not the district court erred in admitting
some of Marston’s interpretations of the intercepted
conversations, any error did not affect Mack’s substantial
rights as required under the third prong of Olano and thus does
not warrant reversal of her conviction.
III.
Mack’s counsel objected at trial, and again argues on
appeal, that Detective Penman’s reference to the utility bill
for the Abingdon house contained inadmissible hearsay and that
the district court’s failure to exclude the reference warrants
reversal of Mack’s conviction. For the reasons that follow, we
disagree.
Penman’s statement that the utility bill was in Mack’s name
did not in fact contain hearsay. 1 This Court has held that “an
out of court statement is not hearsay if it is offered for the
1
The prosecution did not attempt to introduce the utility
bill itself pursuant to the business-records exception to the
hearsay rule, see Fed. R. Evid. 803(6), and thus may not invoke
this exception on appeal.
16
limited purpose of explaining why a government investigation was
undertaken” rather than “to prove the truth of the matter
asserted in the statement.” United States v. Love, 767 F.2d
1052, 1063 (4th Cir. 1985); see also United States v. Obi, 239
F.3d 662, 668 (4th Cir. 2001).
In overruling the objection of Mack’s counsel, the district
court understood the prosecution’s purpose in asking Penman
about the “utilities check” to be to get him to “report the
result of his investigation and state that.” The district court
concluded that the prosecution was not attempting “to prove the
truth of the matter asserted” in the utility bill, and we cannot
say that the district court abused its discretion in reaching
this conclusion.
Moreover, any error committed by the district court in
admitting Penman’s reference to the utility bill was harmless
because the prosecution introduced ample admissible evidence to
link Mack to the Abingdon house. See United States v. Banks,
482 F.3d 733, 741 (4th Cir. 2007). One detective, for instance,
testified without objection that Mack (and Settles) lived at the
Abingdon house, and multiple detectives testified that they had
observed Mack frequently coming from and going to the house
while she was under surveillance. Another testified that, when
the police searched the Abingdon house, they discovered Mack
herself, as well as the mobile phone on which she had made and
17
received the intercepted calls. Finally, after the police
stopped a vehicle in which Settles had been riding and arrested
him for cocaine possession, the driver called Mack to say that
he and Settles had been traveling to the Abingdon house to see
her. In short, besides Penman’s reference to the utility bill,
there was overwhelming evidence that Mack lived at the Abingdon
house; Penman’s statement was merely cumulative of this other
evidence and thus did not sway the jury’s decision to convict
Mack.
IV.
Finally, at the close of her trial, Mack asked the district
court to instruct the jury on the meaning of “reasonable doubt”
and objected when the district court denied her request, an
objection she renews on appeal. This Court has “repeatedly held
that a district court need not, and in fact should not, define
the term ‘reasonable doubt’ even upon request.” United States
v. Williams, 152 F.3d 294, 298 (4th Cir. 1998).
The district court properly heeded this admonition in
denying Mack’s request for a reasonable-doubt instruction. 2
2
Having carefully reviewed the argument made by Mack’s
appellate counsel pursuant to Anders v. California, 386 U.S. 738(1967), that the district court lacked jurisdiction over Mack,
as well as the arguments made by Mack in her pro se appellate
brief, we find them to be meritless.
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V.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
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