United States v. Reed ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-50040
v.
 D.C. No.
CR-03-00084-
RODRICK CARDALE REED, aka
Boulevard, Li’l Rod, VAP-1
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 06-50048
v.
GEORGE WILLIAMS, a/k/a JIMMY  D.C. No.
CR-03-00084-
WILLIAMS, GEORGE JUNE, GEORGE VAP-24
WILSON AND JAMES WILLIAMS,
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 06-50302
Plaintiff-Appellee,
D.C. No.
v.
 CR-03-00084-
RICHARD DARNELL JOHNSON, a/k/a VAP-10
RICHARD JOHNSON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
10161
10162 UNITED STATES v. REED
Argued and Submitted
October 24, 2008—Pasadena, California
Filed August 4, 2009
Before: Harry Pregerson, Cynthia Holcomb Hall, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
10166 UNITED STATES v. REED
COUNSEL
Joseph T. Vodnoy of Los Angeles, California, for defendant-
appellant, Rodrick Cardale Reed.
Alissa Sawano Peterson of Irvine, California, for defendant-
appellant, Richard Darnell Johnson.
Robinson D. Harley, Jr. of Santa Ana, California, for
defendant-appellant, George Williams.
Shannon P. Ryan, Assistant United States Attorney for the
Central District of California, Los Angeles, California, for
appellee, United States of America.
OPINION
N.R. SMITH, Circuit Judge:
Rodrick Reed (Case No. 06-50040), George Williams
(Case No. 06-50048), and Richard Johnson (Case No. 06-
50302) appeal their convictions and sentences following a
jury trial. Each Appellant was convicted of conspiracy crimes
involving the manufacture and distribution of phenylcyclo-
hexylpiperidine (“PCP”). Reed was also convicted of conspir-
acy to possess firearm silencers. The district court had
jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm the
judgment of the district court and affirm the convictions and
sentences of each Appellant.1
1
Concurrent with this opinion, we have filed separate memorandum dis-
positions in the companion cases of United States v. Jackson, No. 06-
50354 and United States v. Green, No. 06-50069.
UNITED STATES v. REED 10167
Reed, Williams, and Johnson primarily assert that the dis-
trict court erred in denying their motion to suppress wiretap
evidence for Target Telephone No. 10 (“TT10”). In affirming
their convictions, we hold (1) that the Government’s wiretap
application satisfied the necessity requirement; (2) the district
court did not err in finding that the Government had not inter-
cepted telephone calls on a line for which there was no court
order; (3) the Government was not required to seal call data
content (“CDC”) and it timely sealed the wiretap recordings
under § 2518(8);2 and (4) the Government did not violate the
statutory wiretap monitoring requirements of § 2518(5).
Appellants raise additional issues regarding access to an
expert witness (Reed), destruction of witness interview notes
(Williams and Johnson), admission of expert testimony
regarding “drug jargon” (Johnson), sufficiency of the evi-
dence (Williams), adequacy of jury instructions (Williams),
and admission of prior felonies for sentencing (Williams). We
affirm the district court on each of these issues.
FACTUAL BACKGROUND
Appellants’ convictions arise from the Government’s inves-
tigation of a PCP manufacturing and distribution operation in
central California. In May 2002, the Government acquired
information from an informant that Reed and others were
manufacturing and distributing PCP. In November 2002, the
informant communicated with Reed and his associate, Kim
Stinson, about purchasing PCP. Reed made arrangements for
the sale. In February 2003 (under law enforcement surveil-
lance), the informant purchased a half gallon of PCP from
Reed’s associate, Anthony Piggue.
2
Statutory references to 18 U.S.C. § 2518, unless otherwise noted, omit
“18 U.S.C.” from the citation.
10168 UNITED STATES v. REED
I. Adelanto Drug Lab.
On March 21, 2003, local law enforcement discovered a
PCP drug lab near Adelanto, California. At the lab, officers
seized full-face respirators and various containers, containing
about four pounds of crystalline PCP, and other chemicals
used in manufacturing PCP. In a white van at the lab, officers
found documents connecting the van to Reed, Stinson, and
Henry Henderson. A receipt in the van showed Stinson’s
address on Lorraine Place, Rialto, California (“Lorraine resi-
dence”).
II. Federal Wiretap.
Marvin McCaleb was supplying PCP precursor chemicals
to Reed. While monitoring a telephone used by McCaleb,
agents intercepted numerous calls made to McCaleb from
Reed discussing PCP manufacturing. These calls originated
from a telephone (TT10) subscribed to Terry Jackson. On
April 4, 2003, the Government received a federal wiretap
order for TT10 and began recording conversations confirming
that Reed and his associates were manufacturing and distrib-
uting PCP and had firearms.
On April 8, 2003, the Government submitted an interim
report to the authorizing judge. The Government informed the
court that, although TT10 was used by Reed, within the first
few hours of interception it became clear that TT10 was pri-
marily used by Terry Jackson. Still, the Government had clear
evidence that TT10 was being used in the furtherance of the
PCP conspiracy. Upon filing an interim report with the court,
the Government received permission to continue the wiretap
of TT10.
III. Calls Intercepted on TT10 Provide Additional
Evidence of PCP Operations.
Among the calls intercepted on TT10, agents recorded an
April 6, 2003 call between Stinson and Appellant Williams,
UNITED STATES v. REED 10169
in which Williams stated that he was lining up some out of
state PCP purchasers for Reed.
On April 13, 2003, the Government intercepted calls
involving Reed, Jackson, and Benjamin Beal, indicating that
they were preparing to manufacture more PCP. Government
agents watched the Lorraine residence and observed Reed
directing others to load the white van with orange buckets and
red canisters and handling a respirator. When the van departed
the residence, the California Highway Patrol (“CHP”) con-
ducted a traffic stop where officers smelled strong chemical
odors upon approaching the van and observed the buckets and
canisters. Johnson was driving the van and told the CHP offi-
cer that the chemicals were used for carpet cleaning. After a
hazmat team responded to the scene, it was determined that
all of the chemicals and equipment related to the manufacture
of PCP. In addition, the van contained 26.1 kilograms of PCP
in crystalline form.
Two days after the van stop and seizure, Reed used TT10
to speak with several of his associates. Reed informed them
of the seizure and directed them regarding future PCP manu-
facturing. Shortly after that call, Reed called Williams and
discussed the van seizure and described his plans to make
“grignard,” a chemical reagent used in making PCP. Williams
asked Reed about his plan, and counseled him on how to
avoid law enforcement. Later that same day, Reed told
another associate that the van had chemicals worth about
$100,000, capable of making 150 to 200 gallons of PCP,
worth a street value of about $2 million.
Later that month, deputies went to the Lorraine residence
to further investigate the seizure of the white van. Deputies
apprehended Reed and Jackson and questioned them about the
white van. Stinson, cooperating with the Government, later
testified that the white van belonged to Reed.
By May 2003, Reed was again manufacturing PCP. On
May 13 and 14, Reed communicated with two other co-
10170 UNITED STATES v. REED
defendants about the manufacturing operation. Sheriff’s depu-
ties later found five gallons of PCP buried underground on
property owned by the father of one of these co-defendants.
IV. The Arrests.
On July 10, 2003, federal agents executed a series of search
and arrest warrants for Reed and his co-defendants, arresting
Reed at the Lorraine residence and retrieving $17,000 in cash
in the trunk of a car at the residence.
An apartment shared by Johnson and Jackson was also
searched. During the search, officers found documents in
Johnson’s name and a container containing trace amounts of
PCP in Johnson’s closet. Agents also searched the apartment
belonging to Reed’s girlfriend, where they located two 9mm
firearms with attached silencers.
V. The Indictments.
On June 3, 2004, a federal grand jury returned a nine-count
indictment charging more than twenty defendants, including
Appellants, with drug and firearms violations. Count one
charged each defendant with a violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), 841(c)(2), and 846 as well as 18
U.S.C. § 2 (conspiracy to manufacture, aid and abet the manu-
facture, possess with intent to distribute, and distribute more
than 100 grams of PCP); count two charged Reed with a vio-
lation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C.
§ 2 (aiding and abetting the distribution of 100 grams or more
of PCP; count three charged Reed and Johnson with a viola-
tion of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2(attempting and aiding and abetting the manufacture of 100
grams or more of PCP); count seven charged defendant Reed
with a violation of 18 U.S.C. § 922(g)(1) (felon in possession
of a firearm); and count nine charged Reed with a violation
UNITED STATES v. REED 10171
of 18 U.S.C. § 371 and 26 U.S.C. § 5861 (conspiracy to pos-
sess unregistered firearm silencers).3
VI. The Motions To Suppress.
On July 8, 2004, Reed filed a motion to suppress the wire-
tap evidence recorded for TT10 and all derivative evidence.
Reed argued that (1) the wiretap should have ceased when it
was discovered that Terry Jackson was the primary user of the
phone; (2) the wiretap was not properly sealed within two
days under 18 U.S.C. § 2518(8)(a); and (3) the wiretap appli-
cation failed to satisfy the necessity requirement. After a hear-
ing on October 19, 2004, the court issued a written order
denying the motion. Instead, the court found that the probable
cause requirements were met in the original application. Fur-
ther, given the traditional law enforcement techniques already
employed and the nature of the conspiracy being investigated,
the Government had shown necessity for the wiretaps. The
district court also found that the Government complied with
all statutory sealing requirements.
During the October 19, 2004 hearing on the first motion to
suppress, Reed’s attorney referenced a supplemental motion
to suppress that he filed that morning, relating to an issue of
illegal, warrantless wiretaps. Reed, joined by Williams, John-
son and other co-defendants, renewed the supplemental
motion on May 23, 2005. The defendants asserted three bases
for suppression: (1) that law enforcement colluded with the
telephone company to (a) intercept calls on a telephone for
which there was no court order and (b) alter wiretap and tele-
phone billing records to conceal the illegal act; (2) that the
Government failed to seal pen register and trap and trace data
for TT10; and (3) that the wiretap monitoring was not prop-
erly supervised by authorized federal agents. The court held
three hearings before denying the motion. The court found
3
Counts four, five, six, and eight relate to other co-conspirators who are
not parties to this appeal.
10172 UNITED STATES v. REED
that (1) no illegal wiretapping took place; (2) the defense
expert’s testimony about anomalies in the records was not
persuasive; (3) the missing CDC was the result of technical
difficulties; (4) the CDC was not subject to the sealing
requirements of the wiretap statute; and (5) the wiretap moni-
toring was done in compliance with the law.
VII. The Trial.
On July 7, 2005, the Government filed an information
under 21 U.S.C. § 851 alleging that Reed had one previous,
felony drug crime conviction, and that Williams had previ-
ously been convicted of two felony drug crimes. On July 12,
2005, the cases against Reed, Williams, and Johnson pro-
ceeded to trial. On July 20, 2005, Appellants moved to dis-
miss the indictment and strike testimony due to the
Government’s destruction of evidence (rough interview notes
regarding cooperating Government witnesses). A written
motion was filed on July 22, and the motion was denied on
July 26, 2005. On July 28, 2005, Reed, Williams, and Johnson
were convicted after a 10-day jury trial.
On December 5, 2005, Reed and Williams admitted the
allegations of their prior felony drug convictions. On January
17, 2006, Reed and Williams were sentenced to life in prison.
Johnson was sentenced to ninety-six months’ imprisonment.
DISCUSSION
I. APPELLANTS’ MOTION TO SUPPRESS
WIRETAP EVIDENCE WAS PROPERLY DENIED.
Appellants argue that the district court erred in denying
their motion to suppress wiretap evidence, because (1) the
Government failed to show necessity for the wiretap on TT10,
as required by 18 U.S.C. §§ 2518(1)(c) & (3)(c); (2) the wire-
tap was not discontinued after the Government learned that
TT10 was primarily used by Terry Jackson; (3) the Govern-
UNITED STATES v. REED 10173
ment colluded with the telephone company to make illegally
intercepted calls appear as though they were lawfully inter-
cepted on TT10; (4) the Government failed to timely seal the
recordings, and completely failed to seal the CDC for TT10;
and (5) the wiretap was not properly monitored by federal
agents. We address each of these arguments individually
below.
In reviewing the denial of a motion to suppress evidence,
we review the district court’s factual findings for clear error.
See United States v. Hermanek, 289 F.3d 1076, 1085 (9th Cir.
2002) (citation omitted). We review de novo “whether an
application for a wiretap order is supported by a full and com-
plete statement of the facts in compliance with § 2518(1)(c).”
United States v. Rivera, 527 F.3d 891, 898 (9th Cir. 2008)
(citation omitted). We review for abuse of discretion the issu-
ing judge’s conclusion that the wiretap was necessary. Id.(citation omitted).
A. The Affidavit in Support of the Wiretap Applica-
tion Met the Necessity Requirements of § 2518.
Appellants first argue that the wiretap of TT10 was not sup-
ported by an affidavit demonstrating necessity, because tradi-
tional investigative techniques had not been exhausted. They
raise no challenge on appeal to the probable cause for the
wiretap. We conclude that the district court did not err in find-
ing that the affidavit satisfied the necessity requirement.
[1] The Omnibus Crime Control and Safe Streets Act, 18
U.S.C. §§ 2510-2522 (the “wiretap statute”), governs wiretap
applications. After showing probable cause, the Government
must also prove necessity by making “a full and complete
statement as to whether or not other investigative procedures
have been tried and failed or why they reasonably appear to
be unlikely to succeed if tried or to be too dangerous . . . .”
Rivera, 527 F.3d at 897 n.1 (quoting § 2518(1)(c)). The issu-
ing judge may approve the wiretap if he or she determines
10174 UNITED STATES v. REED
that “normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if
tried or to be too dangerous . . . .” Id. (quoting § 2518(3)(c)).
The purpose of these requirements is to ensure that “wiretap-
ping is not resorted to in situations where traditional investi-
gative techniques would suffice to expose the crime.” United
States v. Kahn, 415 U.S. 143, 153 n.12 (1974).
1. The Affidavit Contains a Full and Complete
Statement of Facts in Compliance with
§ 2518(1)(c)
To determine whether an affidavit contains a full and com-
plete statement of facts in compliance with § 2518(1)(c), we
must “assess whether the affidavit attests that adequate inves-
tigative tactics were exhausted before the wiretap order was
sought or that such methods reasonably appeared unlikely to
succeed or too dangerous.” Rivera, 527 F.3d at 898 (citation
omitted).
[2] The Government’s affidavit, in support of the wiretap
application, describes prior investigative techniques and/or
explains why these techniques had been or would be too dan-
gerous or unsuccessful. The affidavit addresses other wire-
taps, specific confidential informants, unfruitful physical
surveillance, unproductive search warrants, interviews, trash
searches, financial investigations, and pen registers/trap and
trace devices/telephone tolls and subscriber information. In
each case, the affidavit describes (1) the efforts undertaken
and (2) why the results were insufficient or why a proffered
technique would be unavailing in the context of this particular
drug conspiracy investigation.
[3] Appellants contend that federal agents failed to follow
new leads, new informants, and other new evidence provided
by local law enforcement before applying for the wiretap.
They also contend that the affidavit omitted law enforce-
ment’s success using normal investigative techniques, includ-
UNITED STATES v. REED 10175
ing the use of a tracking device on Reed’s white van. Reed
contends that the investigative techniques listed in the affida-
vit were not directed at him individually, but related only to
the broader conspiracy investigation. He therefore suggests
that techniques such as informants, search warrants, and
tracking devices were not fully utilized. These arguments are
unconvincing in light of the Government’s affidavit, which
sufficiently sets forth reasons (1) why the informants would
not produce further evidence (informants were in custody,
were unwilling, lacked further information about Reed, or
were no longer trusted by Reed), (2) why a search warrant
would not be successful (Government did not know where
Reed resided), and (3) why tracking devices were ineffective
(Reed and associates constantly changed cars). Any omissions
in the affidavit regarding the limited success achieved by tra-
ditional investigative techniques does not require suppression,
because such omissions were not material in causing the wire-
tap warrant to issue. See id. at 898.
Accordingly, we conclude that the Government made a
“full and complete statement” of prior investigative proce-
dures and why these procedures failed or would be unlikely
to succeed.
2. The District Court Did Not Abuse its Discretion
in Finding Necessity for the Wiretap.
When reviewing the district court’s finding of necessity,
“we employ a ‘common sense approach to evaluate the rea-
sonableness of the government’s good faith efforts to use tra-
ditional investigative tactics or its decision to forgo such
tactics based on the unlikelihood of their success or the proba-
ble risk of danger involved with their use.’ ” Rivera, 527 F.3d
at 902 (quoting United States v. Gonzalez, Inc., 412 F.3d
1102, 1112 (9th Cir. 2005)); see also S. Rep. No. 1097, 90th
Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112, 2190
(“Merely because a normal investigative technique is theoreti-
cally possible, it does not follow that it is likely. What the
10176 UNITED STATES v. REED
[necessity] provision envisions is that the showing be tested
in a practical and commonsense fashion.”) (internal citations
omitted).
[4] “The necessity for the wiretap is evaluated in light of
the government’s need not merely to collect some evidence,
but to ‘develop an effective case against those involved in the
conspiracy.’ ” Rivera, 527 F.3d at 902 (quoting United States
v. Decoud, 456 F.3d 996, 1007 (9th Cir. 2006)). “[L]aw
enforcement officials need not exhaust every conceivable
alternative before obtaining a wiretap.” United States v.
McGuire, 307 F.3d 1192, 1196-97 (9th Cir. 2002) (citation
omitted). The issuing court has considerable discretion in
finding necessity, particularly when the case involves the
investigation of a conspiracy. Id. at 1197-98. This court has
“consistently upheld findings of necessity where traditional
investigative techniques lead only to apprehension and prose-
cution of the main conspirators, but not to apprehension and
prosecution of . . . other satellite conspirators.” Id. at 1198(quoting United States v. Torrez, 908 F.2d 1417, 1422 (9th
Cir. 1990)).
This case involves a drug manufacturing and distribution
conspiracy. The record is clear that the Government did not
seek to use the wiretap as the initial step in its ongoing inves-
tigation, but instead employed numerous investigative tech-
niques, relied on state and local law enforcement efforts,4 and
4
Appellants suggest that the investigative techniques employed by the
Los Angeles Sheriff’s department should be distinguished from those
employed in the related federal investigation for purposes of determining
necessity. They argue that regardless of the investigative techniques previ-
ously exhausted by state/local authorities, federal authorities must inde-
pendently exhaust investigative techniques to satisfy the necessity
requirement. We reject this argument. Federal and state/local law enforce-
ment routinely work together and share information when investigating
criminal activity. Using a common sense approach, if a local agency has
employed a certain investigative technique in a particular case, federal
agencies can rely on the ineffectiveness of that technique for purposes of
showing necessity in the federal investigation of the same case.
UNITED STATES v. REED 10177
considered using a number of alternative techniques over the
course of its 18-month investigation.
[5] In light of the representations made in the Govern-
ment’s affidavit, the issuing court had a sufficient basis to
find that the wiretap order was essential to the success of the
conspiracy investigation. Accordingly, we conclude that the
issuing court did not abuse its discretion in finding that the
wiretap was necessary to identify the full scope of the Reed
organization and “develop an effective case” against its mem-
bers. See Rivera, 527 F.3d at 902 (citing Decoud, 456 F.3d at
1007).
Williams and Johnson also challenge the affidavit support-
ing the application for the wiretap on Target Telephone 11
(“TT11”), on the basis that the affidavit for TT11 was based
on the same showing of necessity as was used for TT10 and
that some of the evidence derived from the wiretap of TT10
was used to support the TT11 application. Because we affirm
the district court’s finding of necessity as to TT10, we reject
these challenges to the affidavit for TT11.
B. The Government Was Not Required to Terminate
the Wiretap of TT10 after Learning That Terry
Jackson Was the Primary User.
Appellants argue that, once authorities discovered that
TT10’s primary user was Terry Jackson, they should have
immediately discontinued the wiretap. They contend that to
continue listening to Jackson’s phone calls was akin to getting
a search warrant for one house, searching the wrong house,
and then even after discovering that it is the wrong house,
continuing the search anyway. We disagree with this analogy
in light of the language of § 2518.
Authorization for a wiretap is based on probable cause to
believe that the telephone is being used to facilitate the com-
mission of a crime, and the order need not name any particu-
10178 UNITED STATES v. REED
lar person if such person is unknown. See § 2518(1)(b)(iv));
Kahn, 415 U.S. at 157; United States v. Nunez, 877 F.2d
1470, 1473 n.1 (10th Cir. 1989) (“[T]he government ha[s] no
duty to establish probable cause as to each interceptee. It is
sufficient that there was probable cause to tap the phone.”).
[6] We have previously stated that wiretap authority is tied
“to specific communications facilities or locations,” and “[a]
cellular phone number is a ‘communications facility.’ ” Her-
manek, 289 F.3d at 1086 & n.3. Identification of individuals
whose communications will be intercepted is only required “if
known.” § 2518(4)(a). Interpreting this provision, the
Supreme Court said, “Congress could not have intended that
the authority to intercept must be limited to those conversa-
tions between a party named in the order and others, since at
least in some cases, the order might not name any specific
party at all.” Kahn, 415 U.S. at 157.
[7] The Government concedes that, after four hours of
monitoring TT10, it was clear that Jackson was the primary
user. Nonetheless, the record shows that TT10 was being used
in the furtherance of Reed’s PCP enterprise, that Jackson (a
previously unknown associate of Reed) called and received
calls from Reed regarding PCP manufacturing, and, on at
least one occasion, Jackson answered a call on TT10 for Reed
and handed the phone to Reed who then proceeded with the
conversation. The Government did not get an order for the
wrong phone, nor intercept calls on a phone for which they
had no order. Although the primary, known target was Reed,
the objective of the wiretap was to intercept communications
made over TT10 to identify the co-conspirators in the PCP
manufacturing conspiracy. In the application, the Government
identified Jackson as the subscriber of TT10. The Govern-
ment subsequently notified the issuing court that Jackson was
the primary user, that he was involved in conversations
regarding the PCP conspiracy, and that Reed continued to call
and receive calls from TT10 regarding PCP manufacturing.
Neither the order nor the wiretap statute requires suppression
UNITED STATES v. REED 10179
of legally intercepted conversations merely because Reed was
not the primary user of TT10.
Appellants make the additional argument that, to intercept
calls on TT10, the Government must have made a separate
showing of necessity as to Jackson once it learned that TT10
was primarily used by Jackson. In other words, the Govern-
ment had not exhausted traditional investigative techniques
with regard to Jackson, did not show necessity with regard to
Jackson, and therefore the wiretap and all derivative evidence
should be suppressed. We reject this argument, given the cir-
cumstances of this case.
[8] First, “the government may seek a wiretap authorization
in order to discover the identities of suspected co-
conspirators, and a conversation involving a party not named
in the authorization that reveals that party’s involvement in
the criminal activity under investigation is admissible.” See
United States v. Homick, 964 F.2d 899, 904 (9th Cir. 1992)
(citing Kahn, 415 U.S. at 156-57). The wiretap application for
TT10, on its face, names certain subjects, in particular Reed,
and “others unknown.” The Government acknowledged that
TT10 was subscribed to by Jackson, and that TT10 was being
used by Reed and others, to advance their conspiracy to man-
ufacture and distribute PCP. Reed was clearly using TT10 in
the furtherance of that conspiracy, which Appellants have not
disputed. At the time of the wiretap application, the Govern-
ment knew only that Terry Jackson was the subscriber of
TT10, but Jackson was not a known conspirator.
Second, the necessity requirement is directed to the objec-
tive of the investigation as a whole, and not to any particular
person. If the Government can demonstrate that ordinary
investigative techniques would not disclose information cov-
ering the scope of the drug trafficking enterprise under inves-
tigation, then it has established necessity for the wiretap. See
McGuire, 307 F.3d at 1197-99. As with probable cause, “the
government ha[s] no duty to establish [necessity] as to each
10180 UNITED STATES v. REED
possible interceptee. It is sufficient that there was [necessity]
to tap the phone.” Cf. Nunez, 877 F.2d at 1473 n.1 (citations
omitted). As discussed above, we conclude that the Govern-
ment sufficiently established necessity for the wiretap with
regard to its investigation of the drug trafficking conspiracy
as a whole.
C. The District Court Did Not Err in Finding That the
Government Had Not Illegally Intercepted Tele-
phone Calls.
Appellants argue that (1) the Government illegally inter-
cepted calls from another of Reed’s cellular telephones, “the
619 number,” without a court order, (2) transferred the ille-
gally intercepted calls to the wireroom for TT10 to make the
call appear to be legally intercepted, and (3) then colluded
with the telephone company to conceal the illegal act. The
district court found that no such illegal wiretap occurred.
Reviewing the record, we conclude that the district court’s
findings are not clearly erroneous. See Hermanek, 289 F.3d at
1085 (factual findings reviewed for clear error).
First, the Government presented evidence in the form of
declarations from the agent in charge of the investigation and
an employee of the telephone company, stating that no wire-
tap was conducted on the 619 number. Second, the record
shows that nearly every one of the suspect calls from the 619
number involved Reed speaking with Jackson. Jackson was
the listed subscriber and primary user of TT10, for which the
Government had a lawful wiretap order. Therefore, the direct
evidence in the record supports the conclusion that the Gov-
ernment intercepted calls on TT10 between Reed (using the
619 number) and Jackson (using TT10).
Appellants’ theory is based on “circumstantial evidence,”
including discrepancies between wiretap investigation records
and billing records provided by the telephone company, as
well as the suggestion that the 619 number was previously
UNITED STATES v. REED 10181
subscribed to the Long Beach Police Department.5 Appellants
point to Government wiretap records that do not precisely
match billing records provided by the telephone company. A
defense expert testified that, because the CDC was not pro-
vided by the Government, he could not do a complete analysis
of the wiretap. He nonetheless opined that, because some of
the dial tones heard in the recordings did not sound like cellu-
lar telephone calls, the Government may have been wiretap-
ping other telephones.
The Government’s wiretap records also showed Reed call-
ing TT10 more than twenty-seven times from the 619 number,
but telephone billing records for TT10 do not show all of
these calls. Appellants argue that this proves that the inter-
cepted calls were not done from the authorized wiretap of
TT10, but from an unauthorized and illegal wiretap of the 619
number. Appellants further speculate that the Government
colluded with the telephone company to cover up the illegal
wiretap. When Reed subpoenaed the records for the 619 tele-
phone, the records for the period when Reed called TT10
5
Appellants speculate that the Government must have changed the sub-
scriber information (to a fictitious account) on the 619 number and planted
it with Reed to facilitate their illegal monitoring. In support of this theory,
Appellants relied on the opinion of a former DEA agent who testified that,
based on his investigation of the 619 number, he believed that it had previ-
ously been subscribed to the Long Beach Police Department. Billing
records for the 619 number showed that it was subscribed to Aric Kadosh,
a fictitious account, and had once belonged to the City of Long Beach.
When the cell phone was used by the City of Long Beach, multiple calls
were made to Long Beach police officers, and therefore Appellants assert
that the 619 telephone must have belonged to the Long Beach police
department. Because the FBI and Government task force investigating
Reed once interviewed a cooperating witness in Long Beach, “possibly at
the Long Beach Police Department,” Appellants speculate that the Gov-
ernment provided a cellular phone (the 619 number) to the witness to give
to Reed. The Government challenges this theory by pointing out that the
619 telephone was one of five numbers used by Reed, all of which were
subscribed to by the same fictitious account, and all of which were shut
down shortly after seizure of the van containing PCP.
10182 UNITED STATES v. REED
using the 619 telephone turned up missing. Therefore, Appel-
lants argue that the Government must have been monitoring
the 619 number without a court order.
To explain the discrepancies between the phone records
and telephone company records, a DEA technician testified
that the DEA equipment could not capture all of the electronic
data sent by the telephone company. A telephone company
employee also testified that billing records do not reflect
incomplete or dropped calls, and “even when calls are com-
pleted, and communication takes place, technical failures may
cause some calls not to be reflected in billing records.” The
telephone company employee also testified that billing
records may contain inaccuracies, because they are main-
tained by an outside billing service, and it is not unusual for
the billing statement to show fewer calls than the pen register
and wiretap data.
[9] We find Appellants’ theory to be highly speculative and
supported only by tenuous, circumstantial evidence.6 The dis-
trict court’s conclusion that there was no illegal wiretapping
of the 619 number is supported by the record. Therefore, we
cannot say that the district court’s findings are clearly errone-
ous, or that the district court erred in denying the motion to
suppress based on the allegation of a warrantless wiretap of
the 619 number.
D. The Government Properly and Timely Sealed the
Wiretap Recordings.
[10] We reject Appellants’ argument that there was undue
delay in sealing the wiretap recordings for TT10 and other
lines. Section 2518(8)(a) requires that “[i]mmediately upon
6
Further, we note that the defense expert’s opinion that some of the calls
did not sound like cellular phones does not support Appellants’ theory that
the Government illegally intercepted calls on the 619 number, where the
619 number was a cellular telephone.
UNITED STATES v. REED 10183
the expiration of the period of [a wiretap] order, or extensions
thereof, such recordings shall be made available to the judge
issuing such order and sealed under his directions.”
§ 2518(8)(a). We have previously borrowed the interpretation
of other circuits that “immediately sealing recordings” means
“within one or two days” and “any delay beyond that certainly
calls for explanation.” United States v. Pedroni, 958 F.2d 262,
265 (9th Cir. 1992) (citations omitted). The length of a delay
is not dispositive, but the Government must “explain not only
why a delay occurred but also why it is excusable.” Id. at
265-66 (admitting recordings after 14 day delay and citing
cases admitting recordings after delays of 20, 39, 57 and 118
days) (citation and quotation marks omitted). Further, “[t]he
unavailability of the issuing or supervising judge may consti-
tute a satisfactory explanation for a sealing delay.” Id. at 266.
We review de novo the district court’s determination that the
Government’s reasons for delay in sealing the wiretap record-
ings were satisfactory. Id. at 265 (citation omitted).
[11] In this case, Appellants cry foul over a six day delay
in sealing the wiretap recordings for TT10.7 The district court
concluded that the Government had complied with
§ 2518(8)(a), because that section requires that “immediately
upon expiration” of the wiretap order, “the recordings shall be
made available to the judge issuing such order.” (emphasis
added). The record shows that the Government made its appli-
cations to seal the recordings within one or two court days
after the wiretaps terminated, and then sought the first avail-
able date provided by the district court for sealing.8 Thus, the
7
Appellants also challenge the four-day delay in sealing TT11, and a
seven-day delay in sealing Target Telephone 8 (“TT8”).
8
The record shows that for TT8, the wiretap terminated on Friday,
March 28, 2003 at 9:00 pm, and the application to seal the recordings
made the following Tuesday on April 1, 2003, with the court issuing the
order to seal on April 4, 2003. For TT10, the wiretap terminated on Fri-
day, May 2, 2003, the application filed on the following Monday, and the
seal ordered on May 8, 2003. Finally, for TT11, the wiretap terminated on
Thursday, May 29, 2003, with the application to seal made the same day,
and granted the following Monday, June 2, 2003. We conclude that none
of these delays is so extreme, nor the explanation insufficient, to require
suppression.
10184 UNITED STATES v. REED
Government made the recordings immediately available to the
district court. Although the actual sealing of the recordings
was not always accomplished within two days, the record
shows that any delay was the result of the district judge’s
unavailability due to a full calendar. We conclude that this
explanation is satisfactory for the short delays involved in this
case. See Pedroni, 958 F.2d at 265. Therefore, the district
court correctly denied the motion to suppress on this basis.
E. Section 2518(8)(a) Does Not Require the Govern-
ment to Seal CDC.
[12] Appellants also argue that the wiretap evidence should
be suppressed, because the Government failed to seal CDC
from TT10. The district court ruled that § 2518(8) does not
apply to CDC, because it is not an “oral or wire communica-
tion.” Whether § 2518(8) requires the sealing of CDC is a
question of first impression for this court. We review de novo
the district court’s construction or interpretation of a statute.
United States v. Cabaccang, 332 F.3d 622, 624-25 (9th Cir.
2003) (en banc). We affirm, holding that CDC is not an inter-
cepted communication falling within the sealing requirements
of § 2518(8).
We first emphasize that CDC is separate and distinct from
the substantive, oral content of a telephone call. In this case,
the record shows that the wiretap order for TT10, which also
authorized the use of a pen register and trap and trace device,
directed the telephone company to provide the Government
with both the oral call content (“CCC”) and CDC. CCC
encompasses only the oral conversations that are transmitted
over the telephone line, while CDC is data about the “call
origination, length, and time of call.” In other words, CDC
encompasses the information collected by the pen register
and/or trap and trace device. Because CDC is nothing more
than pen register and trap and trace data, there is no Fourth
Amendment “expectation of privacy.” See Smith v. Maryland,
442 U.S. 735, 743-44 (1979). Further, pen registers and trap
UNITED STATES v. REED 10185
and trace devices and data are regulated by 18 U.S.C.
§§ 3121-3127, which contain no requirement that such data be
sealed.
Appellants argue that, because CDC was part of the data
stream collected in real time by the Government in connection
with the wiretap, it falls within the provisions of § 2518(8)
and failure to seal the CDC data requires suppression. We dis-
agree.
To determine whether § 2518(8)(a) requires CDC data to
be sealed, we begin with the plain language of the wiretap
statute. See United States v. Rosales, 516 F.3d 749, 758 (9th
Cir. 2008) (“Statutory interpretation begins with the plain lan-
guage of the statute.”) (citation and alteration omitted). The
statute provides, in relevant part:
The contents of any wire, oral, or electronic commu-
nication intercepted . . . shall, if possible, be
recorded on tape or wire or other comparable device.
The recording of the contents of any wire, oral, or
electronic communication under this subsection shall
be done in such a way as will protect the recording
from editing or other alterations. Immediately upon
the expiration of the period of the order, . . . such
recordings shall be made available to the judge issu-
ing such order and sealed under his directions.
§ 2518(8).
[13] The plain language of this recordation and sealing
requirement applies only to the “contents of any wire, oral, or
electronic communication intercepted . . .” § 2518(8) (empha-
sis added). As defined in 18 U.S.C. §§ 2510(1)-(2), a wire or
oral communication is an “aural communication” made by aid
of a wire, or an “oral communication” uttered by a person. 18
U.S.C. §§ 2510(1)-(2).9 CDC clearly does not fall within this
9
Section 2510 defines “wire communication” as “any aural transfer
made in whole or in part through the use of facilities for the transmission
10186 UNITED STATES v. REED
definition, because it is not an aural communication of any
kind.
[14] Appellant Johnson argues that CDC must be sealed,
however, because it is an “electronic communication,” which
is defined as:
any transfer of signs, signals, writing, images,
sounds, data, or intelligence of any nature transmit-
ted in whole or in part by a wire, radio, electromag-
netic, photoelectronic or photooptical system that
affects interstate or foreign commerce . . . .
18 U.S.C. § 2510(12). Even if CDC data could be considered
an “electronic communication,” the failure to seal the data
would not require suppression. Suppression for violation of
the statute is permitted only for “wire or oral communica-
tions.” Section 2518(10)(a) provides:
Any aggrieved person . . . may move to suppress the
contents of any wire or oral communication inter-
cepted . . . or evidence derived therefrom, on the
grounds that—
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under
which it was intercepted is insufficient on its face; or
of communications by the aid of wire, cable, or other like connection
between the point of origin and the point of reception . . .” 18 U.S.C.
§ 2510(1).
An “ ‘oral communication’ means any oral communication uttered by
a person exhibiting an expectation that such communication is not subject
to interception under circumstances justifying such expectation, but such
term does not include any electronic communication[.]” Id. at § 2510(2).
UNITED STATES v. REED 10187
(iii) the interception was not made in conformity
with the order of authorization or approval.
§ 2518(10)(a) (emphasis added). As discussed above, CDC is
clearly not a “wire or oral communication” and therefore sup-
pression is not permitted by the statute. The statute further
states that “[t]he remedies and sanctions described in this
chapter with respect to the interception of electronic commu-
nications are the only judicial remedies and sanctions for non-
constitutional violations of this chapter involving such
communications.” § 2518(10)(c). Because sealing is not a
constitutional requirement, there is no statutory remedy of
suppression for interceptions of “electronic communications.”
See United States v. Meriwether, 917 F.2d 955, 960 (6th Cir.
1990) (citing § 2518(10)(c)). Accordingly, even if we
accepted Johnson’s argument that the CDC data stream was
an electronic communication, the district court did not err in
denying the motion to suppress for failure to seal the CDC
data. Nonetheless, as discussed below, we conclude that CDC
is not an electronic communication that must be sealed under
§ 2518(8).
CDC is undoubtedly data, and in this case the data was
compiled in real time by the telephone company and trans-
ferred to the federal agents monitoring the wiretap via wire.
Therefore, in the abstract, CDC appears to satisfy the defini-
tion of an electronic communication. However, to determine
whether CDC is subject to the sealing requirement, we must
construe this provision in the context of the legislative scheme
regulating wiretaps. See United States v. Atlantic Research
Corp., 551 U.S. 128, 127 S. Ct. 2331, 2336 (2007) (“Statutes
must ‘be read as a whole.’ ”).
The wiretap statute generally protects the parties to a com-
munication against the unlawful interception, use, and disclo-
sure of that communication by persons who are not parties to
the communication. See 18 U.S.C. §§ 2511 & 2512. For
example, only an “aggrieved person” may move to suppress
10188 UNITED STATES v. REED
the contents of an unlawfully intercepted communication.
§ 2518(10). An “aggrieved person” is defined to be any “per-
son who was a party to any intercepted wire, oral, or elec-
tronic communication or a person against whom the
interception was directed.” 18 U.S.C. § 2510(11) (emphasis
added). Applications for an order authorizing a wiretap also
focus on the interception10 of communications made by indi-
viduals in the commission of a criminal act. See § 2518(1).
Further, the sealing requirement applies only to the “contents”
of an intercepted communication that can be recorded.
§ 2518(8).11
From these provisions, it becomes clear that the sealing and
recordation requirements of § 2518(8) apply only to (1) the
contents of (2) a wire, oral, or electronic communication (3)
that is transmitted between the parties to that communication
(4) and intercepted by the Government, and then (5) only
when the contents of the communication are able to be
recorded.
[15] The record shows that CDC data is not transmitted to
or received by the parties to a telephone call. Rather, it is data
that is incidental to the use of a communication device and
contains no “content” or information that the parties intended
to communicate. It is data collected by the telephone company
about the source, destination, duration, and time of a call. In
other words, CDC is not a communication under § 2518,
because it is not communicated to or from the parties to the
telephone call.
10
Within the context of the wiretap statute, an “intercept” means “the
aural or other acquisition of the contents of any wire, electronic, or oral
communication through the use of any electronic, mechanical, or other
device.” 18 U.S.C. § 2510(4).
11
As defined in the wiretap statute, “ ‘contents’ when used with respect
to any wire, oral, or electronic communication, includes any information
concerning the substance, purport, or meaning of that communication.” 18
U.S.C. § 2510(8).
UNITED STATES v. REED 10189
[16] To the extent that CDC is a communication of any
sort, it becomes such only when the telephone company trans-
mits it to law enforcement. In that context, it is a communica-
tion of telephone company records from the telephone
company to law enforcement, and therefore not intercepted.12
Even though law enforcement may receive CDC by way of a
transfer of data over a wire, CDC is not an intercepted “elec-
tronic communication” subject to the sealing requirements.
To the extent that the CDC data in this case might be
viewed as “intercepted,” because it was received by law
enforcement in real time in conjunction with their intercept of
telephone calls on TT10, CDC still need not be sealed. The
CDC contains no “content” from the intercepted telephone
calls. Only the “content” of the communication need be
sealed, § 2518(8), and CDC (unlike CCC) contains no “infor-
mation concerning the substance, purport, or meaning of [the]
communication.” See § 2510(8) (defining “contents”).
[17] Because CDC is not an intercepted communication of
any sort and does not contain the content of an intercepted
wire, oral or electronic communication, we hold that it is not
subject to the recordation and sealing requirements of
§ 2518(8).13 We also note that suppression in this case would
12
Our conclusion is also supported by the legislative history of the wire-
tap statute. The 1968 Senate Report expressly provides, “An examination
of telephone company records by law enforcement agents in the regular
course of their duties would be lawful because it would not be an ‘inter-
ception.’ The proposed legislation is intended to protect the privacy of the
communication itself and not the means of communication.” S. Rep. No.
1097, 90th Cong., 2d Sess., 1968 U.S.C.C.A.N. at 2178 (citing United
States v. Russo, 250 F. Supp. 55 (E.D. Pa. 1966)).
13
Although we hold that law enforcement need not seal CDC data, noth-
ing in our opinion should be construed as relieving the Government of its
responsibility to preserve, produce, disclose, and/or present for inspection
any evidence within its care and custody. See, e.g., Fed. R. Crim. P. 16
(prescribing the government’s discovery and disclosure obligations);
Brady v. Maryland, 373 U.S. 83, 87 (1963) (government must disclose
favorable evidence that is material either to guilt or to punishment).
10190 UNITED STATES v. REED
not be warranted, because the Government acted in good
faith. See United States v. Butz, 982 F.2d 1378, 1383 (9th Cir.
1993) (wiretap evidence should not be suppressed where offi-
cers relied in good faith on then-existing law in obtaining pen
registers). Here, the district court found that the Government
relied in good faith on its interpretation of the law in not seal-
ing CDC data. This finding is not clearly erroneous.
F. The District Court Did Not Err in Finding That the
Wiretap Was Supervised by Authorized Federal
Agents.
We also reject Appellants’ argument that the district court
should have suppressed the wiretap evidence, because (1) a
sign-in sheet in the wiretap room was not properly maintained
and (2) at least one federal agent entered the wiretap room
without having signed a memorandum prepared by the super-
vising Assistant U.S. Attorney.
Section 2518(5) requires that a wiretap must be conducted
under the supervision of an authorized law enforcement offi-
cer. It provides, in relevant part:
An interception . . . may be conducted in whole or
in part by Government personnel, or by an individual
Further, while the government does not have “an undifferentiated and
absolute duty to retain and to preserve all material that might be of con-
ceivable evidentiary significance in a particular prosecution,” Arizona v.
Youngblood, 488 U.S. 51, 58 (1988), the government must always act in
good faith to preserve relevant and material evidence, particularly if that
evidence has apparent exculpatory value and where a defendant “would be
unable to obtain comparable evidence by other reasonably available
means,” California v. Trombetta, 467 U.S. 479, 489 (1984); see also
United States v. Artero, 121 F.3d 1256, 1259-60 (9th Cir. 1997).
In this case, the district court found that the Government acted in good
faith and provided Appellants with all CDC data that the Government was
able to collect. These findings are not clearly erroneous.
UNITED STATES v. REED 10191
operating under a contract with the Government, act-
ing under the supervision of an investigative or law
enforcement officer authorized to conduct the inter-
ception.
§ 2518(5).
Appellants argue that, because sign-in sheets and work
schedules were not available to corroborate that contract per-
sonnel were properly monitored, the Government failed to
comply with § 2518(5). Further, Appellants argue that one
federal agent, Michelle Starkey, was present on several occa-
sions in the monitoring room, but was not authorized to be
present, because she had not signed a memorandum (outlining
wiretap procedures) prepared by the supervising Assistant
U.S. Attorney. These arguments are not persuasive.
[18] Section 2518(5) does not require the government to
follow any specific protocol to properly supervise a wiretap.
The Government presented evidence that “[a]t all times while
wiretap interception was being conducted, contract personnel
were being supervised by one or more government person-
nel.” Agent Starkey’s mere presence, even if not authorized
by internal procedures, does not violate the requirements of
§ 2518(5), because authorized agents supervised her.14 As the
district court noted, an isolated failure to follow internal pro-
cedures does not amount to a failure to abide by the require-
ments of the statute. Therefore, we affirm the district court’s
findings that the wiretap was properly supervised in compli-
ance with the statute.
14
Even if an isolated violation of agency policy amounted to a violation
of the statute, it is not clear that Agent Starkey’s presence caused any sub-
stantive failures to properly monitor the wiretap. Likewise, Appellants
have not shown any non-speculative prejudice resulting from Agent
Starkey’s presence.
10192 UNITED STATES v. REED
II. THE DISTRICT COURT DID NOT ERR IN
EXCLUDING EXPERT TESTIMONY ON THE
LEGALITY OF WIRETAP EVIDENCE AT A PRE-
TRIAL ADMISSIBILITY HEARING AND AT
TRIAL.
Reed argues that Appellants’ due process rights were vio-
lated when the district court (1) refused to authorize funds for
the presence of an expert at a pretrial hearing on the authen-
ticity of the wiretap recordings and (2) excluded testimony
from the same expert at trial. We review the district court’s
decision to authorize funds for an expert witness for abuse of
discretion. United States v. Depew, 210 F.3d 1061, 1065 (9th
Cir. 2000). We also review the decision to admit or deny
expert testimony for abuse of discretion. See United States v.
Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000).
A. Denial of Expert Testimony at Admissibility
Hearing.
[19] We conclude that the district court did not abuse its
discretion and Appellants were not prejudiced by the district
court’s denial of Appellants’ request to have an expert present
at the hearing regarding the admissibility of the wiretap
recordings. Under 18 U.S.C. § 3006A(e)(1), the district court
must authorize employment of an expert witness for an indi-
gent defendant if it finds that an expert is necessary. Whether
funds should be expended for an expert depends on “the con-
text of the underlying claim for which [one] asserts he ought
to have been given expert help.” United States v. Rodriquez-
Lara, 421 F.3d 932, 940 (9th Cir. 2005). Thus, Appellants
must show by clear and convincing evidence that “(1) a rea-
sonably competent counsel would have required the assis-
tance of the requested expert for a paying client, and (2) he
was prejudiced by the lack of expert assistance.” Depew, 210
F.3d at 1065 (citations and internal quotation marks omitted).
In this case, the record confirms that the district court
authorized funds to retain an expert and Reed had the benefit
UNITED STATES v. REED 10193
of the expert’s assistance. Reed argues that the district court
erred in denying funds to allow the expert to travel to and be
present at a hearing regarding the admissibility of the wiretap
recordings. The district court reasoned that the hearing was to
lay the foundation for the wiretap calls by the percipient wit-
ness, and no expert testimony would be necessary. Conse-
quently, the expert was not present and did not testify at the
admissibility hearing.
We conclude that the district court did not err in refusing
to allow the expert to be present at the admissibility hearing.
Given the defense theory (that the wiretap recordings included
recordings from illegal wiretaps), the testimony was relevant
to the issue of suppression. The record shows that the district
court heard the defense expert’s testimony at the suppression
hearing. Therefore, the district court did not abuse its discre-
tion in refusing to hear the same testimony at the admissibility
hearing.
To the extent that Reed contends that he required the assis-
tance of the expert to prepare for cross-examination of the
Government’s foundation witnesses, Reed cannot show preju-
dice. Given Reed’s theory in this case, a reasonable, compe-
tent counsel may have needed expert assistance to prepare for
cross-examination. However, the record shows that Reed’s
attorney actually consulted with the expert during a two-week
recess to develop the cross-examination of the Government’s
foundation witness. When the hearing was reconvened,
Reed’s counsel informed the court that it had “spent many
hours with the expert . . . developing a line of cross-
examination.” Therefore, we conclude that Reed had the ben-
efit of expert assistance in preparing for the hearing.
Reed cannot show that he was prejudiced by not having his
expert present at this hearing. First, as noted above, Reed con-
sulted with his expert in preparing for cross-examination of
the Government’s witness. But in any event, Reed’s counsel
declined to cross-examine the Government’s witness at the
10194 UNITED STATES v. REED
hearing. Given the record, Reed has failed to show any preju-
dice.
B. Denial of Expert Testimony on Illegal Wiretaps at
Trial.
[20] The district court also did not abuse its discretion in
precluding expert testimony at trial in support of Appellants’
theory that the Government used “illegal wiretaps.” Arguing
that the expert testimony went to the credibility of the Gov-
ernment witnesses, Appellants sought to present the same evi-
dence adduced at the hearings on the renewed motion to
suppress: expert opinion that there were “anomalies” in the
wiretap that could indicate that the Government was conduct-
ing illegal wiretaps. The district court ruled that the issue of
the legality of the wiretap was a matter for the court and not
the jury. We agree.
It is well-settled that “the question of the competency of the
evidence . . . by reason of the legality or otherwise of its sei-
zure [is] a question of fact and law for the court and not for
the jury.” Steele v. United States, 267 U.S. 505, 511 (1925)
(citing Gila Valley, G. & N. Ry. Co. v. Hall, 232 U.S. 94, 103
(1914) (“Questions of the admissibility of evidence are for the
determination of the court; and this is so whether its admis-
sion depend upon matter of law or upon matter of fact.”). The
legality of a wiretap and the question of whether the Govern-
ment had a warrant for a wiretap is not a question for the jury
to consider, because it is not immediately relevant to the ques-
tion of guilt. See Jones v. United States, 362 U.S. 257, 264
(1960) (noting requirement that motion to suppress “be made
before trial . . . is designed to eliminate from the trial disputes
over police conduct not immediately relevant to the question
of guilt”), overruled on other grounds by United States v.
Salvucci, 448 U.S. 83, 85 (1980). Rather, it is a question for
the court in the context of a pretrial motion to suppress, Fed.
R. Crim. P. 12(b)(3)(C), wherein the court must determine the
competence of evidence and whether such evidence, if ille-
UNITED STATES v. REED 10195
gally obtained, must be suppressed. See also 23A C.J.S. Crim.
L. § 1748 (“Where the admissibility of the evidence depends
on the legality of its seizure or other manner of procurement,
the question whether it was legally obtained is ordinarily for
the court.”).
Appellants’ sole purpose in seeking to introduce the expert
testimony at trial was to reargue the issue of illegal wiretaps,
which the district court had previously addressed in the pre-
trial motion to suppress. The district court considered whether
the expert testimony might be introduced for other purposes
at trial, such as attacking the foundation and authenticity of
the wiretap recordings. Yet, Appellants did not challenge the
content of the wiretap recordings, and they do not now con-
tend that the content of the recordings has been altered.
Rather, the record confirms that the sole purpose of the prof-
fered expert testimony was to show that the Government
obtained evidence illegally. The legality of the wiretap was a
question exclusively for the district court to answer. Accord-
ingly, the court did not abuse its discretion in refusing to reli-
tigate the issue by presenting it to the jury.
III. THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION IN DENYING DEFENDANTS’
MOTION TO DISMISS THE INDICTMENT OR
EXCLUDE TESTIMONY.
Appellants challenge the district court’s denial of their
motion to dismiss the indictment or to preclude the testimony
of Agent Starkey and strike the testimony of several coopera-
tors, alleging that Agent Starkey destroyed her rough inter-
view notes in a violation of the Jencks Act, 18 U.S.C. § 3500,
and the Confrontation Clause of the Sixth Amendment. We
review the district court’s rulings on alleged violations of the
Jencks Act for abuse of discretion. United States v. Simtob,
901 F.2d 799, 808 (9th Cir. 1990) (citation omitted). We
review the district court’s evidentiary rulings during trial for
abuse of discretion. See United States v. Alvarez, 358 F.3d
10196 UNITED STATES v. REED
1194, 1205 (9th Cir. 2004) (noting “wide discretion”) (cita-
tion omitted). We conclude that the district court did not err,
because Agent Starkey’s rough interview notes were not a
“statement” within the meaning of the Jencks Act, and Appel-
lants have shown no prejudice resulting from the destruction
of the notes.
A. Agent Starkey’s Notes Were not a Statement under
the Jencks Act.
After a witness testifies for the government, the Jencks Act
requires the court to order the production, on motion by a
defendant, of any witness statements that the government pos-
sesses “which relates to the subject matter as to which the wit-
ness has testified.” 18 U.S.C. § 3500(b). Under the Act, a
“statement” is “a written statement made by said witness and
signed or otherwise adopted or approved by him,” or a “sub-
stantially verbatim recital of an oral statement made by said
witness and recorded contemporaneously with the making of
such oral statement.” Id. at § 3500(e). Notes and reports of
government agents who testify for the government may con-
stitute “a written statement made by said witness and signed
or otherwise adopted or approved by him.” United States v.
Johnson, 521 F.2d 1318, 1319 (9th Cir. 1975) (quoting 18
U.S.C. § 3500(e)(1)).
We have previously held that “the imposition of sanctions
[for an alleged Jencks Act violation] is not justified where the
rough interview notes of an agent are destroyed in good faith
and those notes can be determined by secondary evidence not
to be Jencks Act ‘statements.’ ” United States v. Griffin, 659
F.2d 932, 938 n.5 (9th Cir. 1982). “While a defendant need
not prove prejudice to show a violation of the Jencks Act,
when there is no prejudice, a witness’s testimony need not be
stricken.” United States v. Riley, 189 F.3d 802, 806 (9th Cir.
1999) (internal citations omitted).
We have also stated that:
UNITED STATES v. REED 10197
[I]t will be the very unusual case where an agent’s
own thoughts will be recorded in rough interview
notes with sufficient completeness or intent to com-
municate to be a Jencks Act statement. In the more
typical case, only the formal interview report,
through which the agent intends to communicate to
others, will be a “statement” under the Jencks Act.
Griffin, 659 F.2d at 938 n.4.
[21] During trial, Appellants learned that Agent Starkey
had taken handwritten notes of interviews, converted them
into a typed report, and then destroyed the original notes. The
next day, Appellants moved to dismiss the indictment based
upon a Jencks Act and Sixth Amendment violation. Agent
Starkey testified that the formal reports she prepared con-
tained all information from her rough notes, and that destruc-
tion of notes was not done under any formal policy of her
agency. The district court denied Appellants’ motion, finding
that the notes were “an aide for her memory,” that everything
from the notes was reflected in the interview reports, and fur-
ther, that her destruction of the notes was not done in bad
faith. These findings are not clearly erroneous.
Further, we find nothing in the record to suggest that the
notes were a “statement” within the meaning of the Jencks
Act, because they were not adopted or approved by any of the
witnesses and were not described to be verbatim transcrip-
tions of the witnesses’ words. Further, the formal reports pre-
pared by Agent Starkey (and which were given to Appellants
at trial) included all the important facts from her notes,
including any potentially exculpatory facts. See United States
v. Williams, 291 F.3d 1180, 1191 (9th Cir. 2002) (production
of notes not required when the substance of the notes has been
preserved in a formal memorandum), overruled on other
grounds by United States v. Gonzales, 506 F.3d 940 (9th Cir.
2007).
10198 UNITED STATES v. REED
B. Appellants were Able to Effectively Cross-Examine
the Cooperating Witnesses.
Appellants also challenge their conviction on the basis that
the destruction of Agent Starkey’s notes was a violation of the
Sixth Amendment Confrontation Clause. They argue that
without Agent Starkey’s rough interview notes, they were
unable to effectively cross-examine the Government’s cooper-
ating witnesses. They contend that the district court erred in
not dismissing the indictment or striking the testimonies of
the cooperating witnesses.15 We disagree.
The Confrontation Clause “requires that a defendant be
given an opportunity for effective cross-examination.” Mur-
doch v. Castro, 365 F.3d 699, 704 (9th Cir. 2004) (citation
omitted). However, it “does not guarantee that a defendant
has all material that he seeks to impeach a witness. Rather, it
guarantees ‘an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.’ ” Williams, 291
F.3d at 1191 (quoting Delaware v. Fensterer, 474 U.S. 15, 20
(1985)).
In Williams, we affirmed the admission of statements even
though the government failed to produce rough interview
notes. Id. The court rejected a Confrontation Clause challenge
because (1) the defendant “had a meaningful opportunity to
cross-examine [the witness], even without the notes,” and (2)
had not shown prejudice. Id.[22] Here, Appellants were able to cross-examine all the
witnesses. They have made no showing that the notes (1) con-
15
“A district court may dismiss an indictment on any of three grounds:
(1) due process, (2) inherent supervisory powers (protecting the integrity
of the judicial process), and (3) statutory grounds.” United States v.
Jacobs, 855 F.2d 652, 655 (9th Cir. 1988). Dismissal is a drastic step that
is disfavored. Id.UNITED STATES v. REED 10199
tained anything exculpatory or (2) would have affected the
outcome of the trial. Thus, they have not shown any prejudice
due to the destruction of the rough notes, especially where
Appellants received Agent Starkey’s formal reports, which
the record indicates contained all the information in the rough
notes. Therefore, we conclude that the district court was not
required to dismiss the indictment or strike any testimony, and
thus did not abuse its discretion.
IV. THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION IN ALLOWING EXPERT TESTI-
MONY REGARDING DRUG JARGON.
Appellant Johnson challenges the district court’s ruling on
his objection to Detective Labbe’s testimony about the mean-
ing of coded language used in the wiretap recordings. At trial,
Johnson argued that Labbe was not qualified and that his testi-
mony was unreliable, in violation of Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993). We review the district
court’s decision to admit expert testimony for abuse of discre-
tion. United States v. Calderon-Segura, 512 F.3d 1104, 1109
(9th Cir. 2008).
Rule 702 of the Federal Rules of Evidence allows for
expert, opinion testimony by a “witness qualified as an expert
by knowledge, skill, experience, training or education” where
the testimony will “assist the trier of fact to understand” mat-
ters of “scientific, technical, or other specialized knowledge.”
Fed. R. Evid. 702. “Drug jargon” is a proper subject for
expert testimony. United States v. Freeman, 498 F.3d 893,
901 (9th Cir. 2007). The Advisory Committee Notes to Rule
702, expressly authorize the use of testimony by law enforce-
ment officers concerning the meaning of words used by drug
traffickers.
We have previously held that law enforcement testimony
about the meaning of drug jargon may be both expert and lay
testimony, depending on the circumstances. Freeman, 498
10200 UNITED STATES v. REED
F.3d at 901-05. Coded terms are the subject of expert testi-
mony, when based on the witness’s experience in investigat-
ing narcotics offenses. Id. The meaning of other, ambiguous
terms is the proper subject of lay testimony, when based on
the witness’s knowledge of the particular case and the defen-
dants. Id.16
[23] Here, Johnson argues that Labbe did not demonstrate
the knowledge, skill, experience, training, or education suffi-
cient to qualify him as an expert or as a percipient witness
regarding drug jargon or coded language in the PCP drug
trade. The district court exercised discretion, sustaining objec-
tions to a portion of Labbe’s testimony regarding the meaning
of “speakers,” but permitting testimony relating to “grignard,”
“yardstick,” and “yards,” which Labbe testified he knew to
refer to the reagent used in the PCP manufacturing process.
Reviewing the record, we are satisfied that Labbe’s testimony
was based on his experience investigating PCP traffickers and
on his specific experience investigating the present case. His
testimony was not inherently unreliable and it was helpful in
defining ambiguous terms used in the wiretap recordings. The
terms related to PCP manufacturing and were outside the
knowledge of the lay juror. Therefore, the district court did
not abuse its discretion in permitting Detective Labbe’s testimo-
ny.17
16
Appellants raised no objection at trial to Labbe’s dual roles as both an
expert and lay witness. We conclude that allowing Labbe to testify as both
an expert and lay witness was not plain error. Freeman, 498 F.3d at 904.
Given the specific nature of Labbe’s testimony and the fact that Appel-
lants were able to conduct a full cross-examination, we conclude that there
is little risk of prejudicial juror confusion. In any event, viewing any error
“in the context of the entirety of [Labbe’s] testimony and other evidence
offered by the [G]overnment,” we conclude that any error was harmless.
See id. at 905.
17
We review for plain error the admission of the portions of Labbe’s tes-
timony that were admitted without objection. United States v. McIver, 186
F.3d 1119, 1129 (9th Cir. 1999)). For example, Detective Labbe testified
(without objection) that “bounce spot” and “bomb spot” referred to loca-
UNITED STATES v. REED 10201
V. SUFFICIENT EVIDENCE SUPPORTS THE
JURY’S GUILTY VERDICT AGAINST WIL-
LIAMS.
Appellant Williams also appeals the district court’s denial
of his Rule 29 motion, challenging the sufficiency of evidence
on the guilty verdict as to the drug conspiracy count and on
the special verdict as to the quantity of drugs. We review de
novo the district court’s denial of a Rule 29 motion for judg-
ment of acquittal. United States v. Johnson, 357 F.3d 980, 983
(9th Cir. 2004). The question we must address is whether,
“viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United
States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir.
2001) (emphasis in original and citations and internal quota-
tions omitted). We conclude that there is sufficient evidence
to support Williams’ conviction.
A. There is Sufficient Evidence Supporting a Guilty
Verdict as to Conspiracy.
“To establish a drug conspiracy, the government must
prove (1) an agreement to accomplish an illegal objective; and
(2) the intent to commit the underlying offense.” United
States v. Iriarte-Ortega, 113 F.3d 1022, 1024 (9th Cir. 2007)
(citation omitted), amended by 127 F.3d 1200 (9th Cir. 1997).
Williams argues that the evidence showed only his “mere
presence” by his “association” with three co-conspirators and
participation in three telephone calls, but not any agreement
to any unlawful objects of the conspiracy. Williams also
tions to manufacture PCP, that “bird up there” referred to police surveil-
lance helicopters, and that “pipes” referred to a PCP precursor chemical,
piperidine. Admission of Labbes’ testimony on these words was not plain
error where the testimony was based on his experience in PCP investiga-
tions, particularly where Defendants had the opportunity to rebut and
cross-examine.
10202 UNITED STATES v. REED
argues that evidence that he received PCP from Reed only
shows that he was a purchaser of drugs, which does not render
him a member of a conspiracy to distribute drugs. See United
States v. Mancari, 875 F.2d 103, 105 (9th Cir. 1989) (“A sale
for the buyer’s personal consumption, as distinct from a sale
for resale, does not a conspiracy make.”).
Relevant to Williams argument, we have previously stated:
In a “mere presence” . . . case, the question is
whether there is enough evidence to tie the defendant
to the criminal activities. . . . [O]nce a conspiracy is
established[,] only a slight connection to the conspir-
acy is necessary to support a conviction. . . The term
“slight connection” means that a defendant need not
have known all the conspirators, participated in the
conspiracy from its beginning, participated in all its
enterprises, or known all its details. A connection to
the conspiracy may be inferred from circumstantial
evidence.
Herrera-Gonzalez, 263 F.3d at 1095. “Innocent association,
even if it is knowing, does not amount to a ‘slight connec-
tion.’ ” Id.“Because most conspiracies are clandestine in nature, the
prosecution is seldom able to present direct evidence of the
agreement.” Iriarte-Ortega, 113 F.3d at 1024 (quoting 2
Wayne R. LaFave & Austin W. Scott, Jr., Substantive Crimi-
nal Law § 6.4(d) 71 (1986)). Thus, a jury may infer the exis-
tence of an agreement from circumstantial evidence, such as
the defendant’s conduct. Id. “Coordination between conspira-
tors is strong circumstantial proof of agreement . . . .” Id.
[24] Our review of the record shows sufficient evidence
that Williams was engaged in a conspiracy to distribute PCP.
For example, Stinson testified that Williams was involved in
various conversations about PCP sales, including an inter-
UNITED STATES v. REED 10203
cepted call where Williams states that he has out-of-state cus-
tomers ready to buy PCP when Reed had completed
manufacturing it. Stinson also testified that he and Reed deliv-
ered PCP to Williams for distribution. Stinson also recalled
that Reed gave Williams a gallon of PCP. Detective Labbe
also testified about an intercepted conversation between Wil-
liams and Reed discussing Reed’s plans to continue manufac-
turing PCP following a lab seizure, in which Williams
counseled Reed to stay away from the Los Angeles docks to
avoid law enforcement.
The evidence, adduced at trial and recounted during the
hearing on the Rule 29 motion, is sufficient to allow a rational
trier of fact to find the essential elements of the crime beyond
a reasonable doubt and clearly supports the verdict on the
conspiracy charge.
B. There is Sufficient Evidence Supporting the
Charged Drug Quantity.
The jury returned a special verdict finding Williams
responsible for 175 kilograms of PCP. Williams also argues
that the drug quantity determination must be reversed,
because the evidence tying him to any PCP conspiracy does
not connect him to any seized quantity of PCP, let alone 175
kilograms of PCP. We disagree.
To apply the statutory mandatory minimum, the govern-
ment must prove to the jury beyond a reasonable doubt that
Williams’s offense involved one kilogram or more of PCP. 21
U.S.C. § 841(b)(1)(A); United States v. Jordan, 291 F.3d
1091, 1095 (9th Cir. 2002). Additional quantities used to
establish the base offense level under the sentencing guide-
lines must be proven only by a preponderance of the evi-
dence. United States v. Kilby, 443 F.3d 1135, 1140-41 (9th
Cir. 2006).
As a preliminary matter, Williams received a life sentence
for his involvement in the PCP conspiracy. Although he
10204 UNITED STATES v. REED
argues that the evidence does not connect him to 175 kilo-
grams of PCP, his contention is immaterial to the outcome.
Considering Williams’s prior felony drug convictions, he was
subject to a mandatory minimum sentence of life imprison-
ment for any amount over one kilogram, per 21 U.S.C.
§ 841(b)(1)(A). Therefore, the only question of any import to
the validity of his sentence is whether there is evidence tying
Williams to more than one kilogram of PCP. Because Stin-
son’s testimony indicated that Williams received more than
one kilogram of PCP, there is sufficient evidence, beyond a
reasonable doubt, to support the sentence imposed. In any
event, we find sufficient evidence in the record to support the
jury’s special verdict.
For purposes of sentencing, a conspirator is to be judged on
the quantity of drugs that he reasonably foresaw or which fell
within the scope of his particular agreement with the conspir-
ator. United States v. Garcia-Sanchez, 189 F.3d 1143,
1147-48 (9th Cir. 1999). The relevant sentencing guideline
holds a conspirator accountable for “reasonably foreseeable
acts and omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during the com-
mission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1)(B).
The record reflects Williams’s active involvement in the
conspiracy: his statements intercepted in conversations with
Reed and Stinson’s testimony at trial show that Williams
understood the nature of the conspiracy and therefore it was
reasonably foreseeable that at least 175 kilograms could fall
within the scope of the conspiracy or result from the acts of
others in its furtherance. For example, two days after 166
kilograms of PCP were seized, Reed spoke with Williams
about the seizure and his plans to continue the operation.
After that call, Williams spoke with Reed about finding
another “spot” to store chemicals and make PCP. Thus, it was
UNITED STATES v. REED 10205
likely foreseeable to Williams that the conspiracy involved
large quantities of PCP.
[25] Even if there had not been a preponderance of evi-
dence showing a connection to 175 kilograms of PCP, there
is sufficient evidence, beyond a reasonable doubt, connecting
him to at least one kilogram of PCP, justifying the sentence
imposed. Given the mandatory minimum of life imprisonment
resulting from a third felony drug conviction, any amount
over one kilogram is immaterial. Accordingly, we affirm Wil-
liams’s sentence.
VI. THE DISTRICT COURT DID NOT ERR IN
DENYING WILLIAMS’S REQUEST FOR A
“MERE PRESENCE” INSTRUCTION.
Williams argues that the district court’s denial of his
request for a jury instruction regarding the “mere presence”
defense constitutes reversible error.18 We review de novo
“whether the district court’s instructions adequately presented
the defendant’s theory of the case.” United States v. Howell,
231 F.3d 615, 629 (9th Cir. 2000) (citation omitted).
A district court may properly refuse to give a “mere pres-
ence” instruction when the government’s case rests on “more
than just a defendant’s presence, and the jury is properly
instructed on all elements of the crime . . . .” Id. at 629 (quot-
ing United States v. Negrete-Gonzales, 966 F.2d 1277, 1282
(9th Cir. 1992). See also 9th Cir. Crim. Jury Instr. 6.9 com-
ment (2003).
18
The requested instruction provides: “It is not enough that the defen-
dant merely associated with the person committing the crime, or unknow-
ingly or unintentionally did things that were helpful to that person, or was
present at the scene of the crime. The evidence must show beyond a rea-
sonable doubt that the defendant acted with the knowledge and intention
of helping that person commit the crime charged.” See also 9th Cir. Crim.
Jury Instr. § 5.01.
10206 UNITED STATES v. REED
[26] Williams argues that there was testimony by a co-
defendant that Williams was merely “hanging out” at Reed’s
residence and wasn’t doing anything. However, the Govern-
ment presented ample evidence that Williams was more than
“merely present” or merely had knowledge of the PCP con-
spiracy. As discussed above, Stinson testified that Williams
was actively involved in distributing large quantities of PCP
that Reed had manufactured. Wiretap recordings also showed
that Williams spoke with Reed about plans to continue PCP
manufacturing after a lab seizure, and Williams advised Reed
on how to avoid law enforcement. The record confirms that
Williams was not “merely present” by innocent association,
nor merely a consumer of PCP. The record shows that Wil-
liams actively advanced the PCP conspiracy. Therefore, we
conclude that a “mere presence” jury instruction was unneces-
sary, because the Government’s case rested on more than just
Williams’s presence alone, and the jury was properly
instructed on all of the elements of the crimes. See Howell,
231 F.3d at 629. Moreover, the “mere presence” instruction
was adequately covered by the instructions given on conspira-
cy.19 See United States v. Govan, 152 F.3d 1088, 1093 (9th
Cir. 1998). Therefore, the district court did not err in refusing
to give a “mere presence” instruction.
VII. THE DISTRICT COURT DID NOT ERR IN NOT
GIVING A SEPARATE INSTRUCTION ON AID-
ING AND ABETTING FOR COUNT I.
We reject Williams’s challenges to the conspiracy instruc-
tion and the special verdict form regarding drug quantity. Wil-
liams made no objection to these instructions at trial.
19
The jury was instructed that “one who has knowledge of a conspiracy
but happens to act in a way which furthers some object or purpose of the
conspiracy doesn’t thereby become a conspirator” and that “a person
doesn’t become a conspirator merely by associating with one or more per-
sons who are conspirators, nor merely by knowing that a conspiracy
exists.”
UNITED STATES v. REED 10207
Therefore, we review these instructions for plain error. United
States v. Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005) (cita-
tion omitted). To show plain error, Williams must prove that
there is: “(1) error, (2) that is plain, and (3) that affect[s] sub-
stantial rights.” Id. Even if all three conditions are met, we
must still exercise discretion and may only reverse for plain
error if “the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Id. (citation omit-
ted).
“In reviewing jury instructions, the relevant inquiry is
whether the instructions as a whole are misleading or inade-
quate to guide the jury’s deliberation.” United States v. Dixon,
201 F.3d 1223, 1230 (9th Cir. 2000) (citation omitted). “A
single instruction to a jury may not be judged in artificial iso-
lation, but must be viewed in the context of the overall
charge.” Id. (citation omitted).
A. The Failure to Give an Aiding and Abetting
Instruction Was Not Plain Error.
Williams argues that the district court erred in refusing to
instruct the jury on the meaning of “aiding and abetting” as
to the conspiracy charge, and that this lowered the mens rea
requirement, because it did not give any “knowingly or inten-
tionally” instruction. We disagree.
The jury instructions, read as a whole, were not misleading
or inadequate. See id. at 1230. The jury was instructed (using
Ninth Circuit Model Instructions 8.16 and 8.20) regarding the
elements of the crime for which Williams was charged: con-
spiracy. Thus, the jury was instructed that it had to find that
Williams “became a member of the conspiracy knowing of at
least one of its objects and intending to help accomplish it.”
(emphasis added). The jury was also instructed that one “be-
comes a member of a conspiracy by willfully participating in
the unlawful plan with the intent to advance or further some
object or purpose of the conspiracy . . .” (emphasis added).
10208 UNITED STATES v. REED
The jury was also instructed that “one who has knowledge of
a conspiracy but happens to act in a way which furthers some
object or purpose of the conspiracy doesn’t thereby become
a conspirator” and that “a person doesn’t become a conspira-
tor merely by associating with one or more persons who are
conspirators, nor merely by knowing that a conspiracy exists.”
Further, the jury was actually instructed as to the elements of
aiding and abetting in connection with instructions on other
counts.
[27] Given the record, we conclude that jury instructions,
when read as a whole, did not lower the mens rea, and were
not misleading or inadequate to guide the jury’s deliberations.
Even if the district court should have issued an additional
instruction specifically defining “aiding and abetting” in a
conspiracy, the district court did not commit plain error.
B. The Special Verdict Form Was Not Plain Error.
Williams also asserts error in establishing his base offense
level under the Guidelines, because he claims that the special
verdict form relating to the charged drug quantity lowered the
burden of proof. Because Williams did not object to the spe-
cial verdict form at trial, we review only for plain error. See
Sanders, 421 F.3d at 1050 (citation omitted). Williams argues
that the instruction allowed the jury to find the charged drug
quantity (required under the guidelines to justify a life sen-
tence) if the 175 kilograms of PCP was “either within the
scope of [Williams’s] agreement with his co-conspirators or
the 175 kilograms was reasonably foreseeable to appellant.”
(emphasis in original). Citing the sentencing guidelines, Wil-
liams argues that the relevant conduct for sentencing must be
both within the scope of the agreement and reasonably fore-
seeable. See U.S.S.G. 1B1.3, Application Note 2.
In the case of a jointly undertaken criminal activity
. . . a defendant is accountable for the conduct (acts
and omissions) of others that was both:
UNITED STATES v. REED 10209
(i) in furtherance of the jointly undertaken criminal
activity; and
(ii) reasonably foreseeable in connection with that
criminal activity.
U.S.S.G. 1B1.3, Application Note 2. Williams contends that
the district court’s use of the disjunctive lowered the burden
of proof.
[18] We conclude that the special verdict form is consistent
with our prior statements of the law relating to sentencing
under the statutory mandatory minimum. See United States v.
Banuelos, 322 F.3d 700, 704 (9th Cir. 2003). In Banuelos, we
stated, “In sentencing a defendant convicted of conspiracy to
distribute a controlled substance . . . the court must find the
quantity of drugs that either (1) fell within the scope of the
defendant’s agreement with his coconspirators or (2) was rea-
sonably foreseeable to the defendant.” 322 F.3d at 704(emphasis added and internal citations omitted). See also
United States v. Gutierrez-Hernandez, 94 F.3d 582, 585 (9th
Cir. 1996) (“[U]nder the Sentencing Guidelines, each conspir-
ator is to be judged on the basis of the quantity of drugs which
he reasonably foresaw or which fell within ‘the scope’ of his
particular agreement with the conspirators, rather than on the
distribution made by the entire conspiracy.”) (emphasis
added); United States v. Petty, 982 F.2d 1374, 1376 (9th Cir.
1993) (same). Therefore, the district court did not commit
plain error in using the disjunctive in the special verdict form.
Even if the district court’s use of the disjunctive were error,
Williams cannot show prejudice, because any error does not
affect his sentence. As Application Note 2 of the relevant sen-
tencing guideline provides, the “requirement of reasonable
foreseeability applies only in respect to the conduct (i.e., acts
and omissions) of others [and] does not apply to conduct that
the defendant personally undertakes . . .” U.S.S.G. 1B1.3,
Application Note 2(ii). Here, as previously discussed, there is
10210 UNITED STATES v. REED
sufficient evidence for a jury to find, beyond a reasonable
doubt, that Williams personally received at least one gallon of
PCP for distribution as part of the conspiracy. Under 18
U.S.C. § 841(b)(1)(A), where Williams had two prior felony
drug convictions, he was subject to a mandatory minimum
sentence of life in prison regardless of the calculation of his
base level offense under the Guidelines. Therefore, where
Williams’s personal conduct is proven, the requirement of
reasonable foreseeability as to the acts or omissions of others
does not apply. Accordingly, we affirm the district court’s
special verdict form regarding the charged drug quantity,
because it was not plain error to use the disjunctive in the spe-
cial verdict form, and, in any event, Williams cannot show
prejudice.
VIII. RULE 11 DOES NOT APPLY TO A DEFEN-
DANT’S ADMISSION TO PRIOR FELONIES
CHARGED IN AN INFORMATION UNDER 21
U.S.C. § 851(B).
Williams finally argues (for the first time on appeal) that
the district court erred by not conducting a Rule 11 colloquy
prior to Williams’s admission to two prior felony drug con-
victions under 21 U.S.C. § 851(b). We review for plain error
a challenge to the district court’s colloquy under § 851(b), not
raised in the district court. See United States v. Thomas, 348
F.3d 78, 86 (5th Cir. 2003). We conclude that the district
court committed no plain error in its § 851(b) colloquy.
Williams relies on California law for the proposition that an
admission of a prior conviction that enhances a sentence is the
functional equivalent of a guilty plea. See Wright v. Craven,
461 F.2d 1109 (9th Cir. 1972) (interpreting California’s habit-
ual criminality statute, Cal. Penal Code § 644(b) (repealed
July 1, 1977)). Construing California’s prior law on habitual
offenders, we held that an admission to prior convictions,
which enhanced the sentence, could not be accepted unless
the defendant understood the consequences of the admission.
UNITED STATES v. REED 10211
Id. at 1109 (citing Womack v. Craven, 431 F.2d 1191, 1192
(9th Cir. 1970)). Thus, Williams contends that, because
admission of his two prior felonies resulted in a life sentence,
he was entitled to a full Rule 11 colloquy. We disagree. First,
we are not bound by California’s now-repealed law on habit-
ual offenders. Second, Rule 11, which applies only to guilty
pleas, see Fed. R. Crim. P. 11, does not govern this case.
Instead, we hold that § 851(b) governs the colloquy a district
court must have with a defendant before he admits to prior
felony convictions.
Section 851(b) requires the court to (1) ask the defendant
whether he admits or denies his prior convictions and (2)
instruct the defendant that should he wish to challenge his
convictions, he must do so in writing, before sentencing or be
prohibited from raising them at any later date. See 21 U.S.C.
§ 851(b); United States v. Severino, 316 F.3d 939, 943 (9th
Cir. 2003) (en banc)).
In this case, Williams was informed of his right to have the
Government prove the prior convictions to the court beyond
a reasonable doubt. He was likewise advised of the factual
bases for the prior convictions and affirmatively concurred
with the factual bases. Williams indicated that he made the
admissions freely and voluntarily and without coercion. His
admission was also intelligent where he made the admission
only after consulting with counsel.
[29] Although not raised by Williams, we note that record
does not disclose that the district court advised Williams that
he must bring any challenges to the prior convictions in writ-
ing before sentence is imposed. This omission, while error, is
harmless, because Williams does not challenge the legality of
the prior convictions and argues only that he had “nothing to
lose” and that “it is reasonably probable that he would have
contested the priors had he been properly advised.” We adopt
the reasoning of the Fifth Circuit, which held, “a district
court’s failure to give a § 851(b) colloquy does not affect the
10212 UNITED STATES v. REED
defendant’s substantial rights where the ‘defendant failed to
. . . challenge the convictions [alleged in the filed informa-
tion] and never revealed what challenges he was prepared to
level.’ ” Thomas, 348 F.3d at 87 (citations omitted) (affirming
a sentence with a § 851 enhancement where no colloquy was
given).
In this case, it was not plain error for the district court to
give Williams a § 851(b) colloquy, because a full Rule 11 col-
loquy was not required. To the extent that the district court’s
851(b) colloquy was deficient, Williams cannot demonstrate
prejudice where he does not challenge the validity of the
underlying convictions.
CONCLUSION
For the reasons set forth above, we affirm the convictions
and sentences of Reed, Williams, and Johnson on all counts.
AFFIRMED.