United States v. Etienne Devoe , 705 F. App'x 551 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30169
Plaintiff-Appellee, D.C. No.
3:13-cr-00079-RRB-6
v.
ETIENNE Q. DEVOE, AKA Tien, AKA MEMORANDUM*
Tin,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted August 16, 2017
Anchorage, Alaska
Before: GRABER, CLIFTON, and M. SMITH, Circuit Judges.
Defendant Etienne Q. Devoe appeals from the judgment following his jury
convictions for conspiracy to distribute controlled substances and conspiracy to
engage in money laundering. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
1. We decline to overrule United States v. Freeman, 498 F.3d 893 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
2007). As a three-judge panel, we lack authority to overrule circuit precedent
unless an intervening Supreme Court decision “undercut[s] the theory or reasoning
underlying the prior circuit precedent in such a way that the cases are clearly
irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
Devoe identifies no such authority.
2. The district court did not plainly err by permitting Special Agent
Clementson to offer lay opinion testimony about the meaning of specialized drug
jargon. “[A]n officer’s interpretation of intercepted phone calls may meet Rule
701’s ‘perception’ requirement when it is an interpretation ‘of ambiguous
conversations based upon the officer’s direct knowledge of the investigation.’”
United States v. Gadson, 763 F.3d 1189, 1206 (9th Cir. 2014) (brackets omitted)
(quoting Freeman, 498 F.3d at 904‒05). Here, Clementson laid an appropriate
foundation—he personally authored the wiretap affidavit, listened to hours of
recorded phone calls, and read all of the intercepted text messages. Given
Clementson’s direct participation in the investigation, he could permissibly
interpret “encoded drug jargon” and “vague or ambiguous statements.” Freeman,
498 F.3d at 901, 902. That is precisely what he did when he interpreted “hit me,”
“mon,” “acct,” and “people been hittin me.”
3. The district court did not plainly err by permitting Detective Dorr to offer
expert testimony about the meaning of specialized drug jargon. “Drug jargon is
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well established as an appropriate subject for expert testimony and investigating
officers may testify as drug jargon experts who interpret the meaning of code
words used in recorded calls.” United States v. Vera, 770 F.3d 1232, 1241 (9th
Cir. 2014). Here, Dorr interpreted encoded drug jargon, including the terms
“quarter” (a price or quantity of drugs), “play” (a discount), “deuce” (code word
meant to disguise the number 2), “change” (one version of a drug product as
opposed to another), “steppin’ it up” (increasing the volume of transactions), and
“where are you at on the count” (have you accumulated enough money to do the
next transaction). Dorr also permissibly interpreted “you ready yet,” “I’ll be ready
in a few days,” “I’ll just wait until, uh, you know,” and “so we both don’t be out
there,” because he explained how he applied his expertise regarding the “stepping
up concept” and the typical drug distribution and repayment model to reach his
interpretations. See id. at 1242 (explaining, as an example, that “an agent may
permissibly apply his knowledge of the drug manufacturing process to interpret
words referring to that process”).
4. The district court did not plainly err by failing to instruct the jury
regarding the difference between Dorr’s expert and lay opinion testimony because,
assuming there was error, Devoe has not shown that he was prejudiced. See
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (explaining that
under plain error review, the proponent must show by “a reasonable probability
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that, but for the error, the outcome of the proceeding would have been different”
(internal quotation marks omitted)). In Vera, we summarized the concerns
underlying the dual role instruction: “[1] an agent’s status as an expert could lend
him unmerited credibility when testifying as a percipient witness, [2] cross-
examination might be inhibited, [3] jurors could be confused[,] and [4] the agent
might be more likely to stray from reliable methodology and rely on hearsay.” 770
F.3d at 1242.
Taking these in turn, if Dorr obtained unmerited credibility for his assertions
as a fact witness, Devoe benefitted from that development because he was asking
the questions on cross-examination, and presumably wanted the answers to be
accepted by the jury. Devoe’s cross-examination was not inhibited by his own
questions. Devoe’s counsel questioned Dorr freely. Continuing on, there was little
risk of juror confusion because Dorr did not oscillate back and forth between
expert and lay testimony. Instead, he offered expert testimony on direct, and then
testified as a percipient witness subsequently on cross-examination. Lastly, Devoe
identifies two exchanges during which he contends Dorr relied on hearsay, but
neither of his contentions is accurate.
United States v. Torralba-Mendia, 784 F.3d 652 (9th Cir. 2015), reinforces
our conclusion that Devoe was not prejudiced by the court’s failure to instruct the
jury on dual capacity testimony. In Torralba-Mendia, we held that the failure to
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issue a dual role instruction did not affect the defendant’s substantial rights
because “the government bifurcated [the agent’s] testimony between his expert
testimony and percipient observations,” the agent “provided an adequate
foundation for most of his observations,” the evidence the agent relied upon was
given to the jury, and “a substantial amount of evidence, aside from [the agent’s]
testimony, connected [the defendant] to the conspiracy.” Id. at 661‒62. The same
is true here. Dorr’s testimony was bifurcated between direct and cross-
examination, it was apparent that Dorr’s lay witness observations derived from his
participation in the investigation, the phone calls and text messages were admitted
into evidence, and a substantial amount of evidence, other than Dorr’s testimony,
tied Devoe to the conspiracy, including Agent Clementson’s testimony.
AFFIRMED.
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