United States v. Gerald Eiland ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 4, 2013 Decided December 27, 2013
Nos. 07-3131 & 11-3001
UNITED STATES OF AMERICA,
APPELLEE
v.
GERALD W. EILAND,
FREDERICK MILLER,
APPELLANTS
Appeals from the United States District Court
for the District of Columbia
(No. 04cr00379-01)
(No. 04cr00379-02)
Eric H. Kirchman argued the cause for appellant Gerald
W. Eiland. With him on the briefs was Kenneth M. Robinson.
Dennis M. Hart argued the cause and filed the briefs for
appellant Frederick Miller.
Frederick A. Miller, pro se, filed the briefs for appellant
Frederick Miller.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne
2
Grealy Curt, and John K. Han, Assistant U.S. Attorneys.
Mary B. McCord, Assistant U.S. Attorney, entered an
appearance.
Before: GARLAND, Chief Judge, and ROGERS and
BROWN, Circuit Judges.
Opinion for the Court by Circuit Judge BROWN.
BROWN, Circuit Judge: Appellants, Gerald Eiland and
Frederick Miller, were convicted of various narcotics-related
offenses. The government’s evidence at trial showed that
Eiland and Miller organized an extensive drug ring in the
Washington, D.C. area that had ties across the country. After
almost a year and a half of investigation including numerous
wiretaps, the government indicted twenty-one defendants.
Many of the defendants pled guilty. The government brought
the remaining defendants to trial in two groups. This appeal
results from the second of these trials. We also heard an
appeal from the first trial, United States v. Miller, Nos. 07-
3135 & 07-3139, and we have disposed of those issues in
another opinion released today.
Eiland and Miller allege numerous errors affecting the
second trial. Although we reject most of appellants’
arguments, we vacate Miller’s insufficiently supported
conviction for his participation in a continuing criminal
enterprise and remand for resentencing. We also vacate the
fine imposed on Eiland by the district court and remand for
reconsideration of that portion of Eiland’s sentence.
I. Facts and Procedural History
Our opinion in the companion case sets out the factual
and procedural background of this case in some detail. We
3
need not retell that story here, and we limit our discussion to
facts relevant to the second trial and this appeal.
Sometime in 2003, the Safe Streets Task Force of the FBI
began investigating a drug trafficking ring in Southeast
Washington, D.C. The evidence revealed a wide-ranging
drug operation headed by Eiland and Miller. The operation
dealt in heroin, cocaine, cocaine base, and phencyclidine
(PCP) and had ties around the country and to foreign
travelers. On February 13, 2004, the task force applied for
and was granted court authorization to wiretap Miller’s cell
phone. The court approved two extensions and the wiretap
lasted three months. In April, the district court permitted the
task force to tap Eiland’s three phones and approved an
extension for one of those phones. FBI Agent Daniel Sparks
provided supporting affidavits for each of the initial wiretap
and extension applications. Although the conspirators often
used untapped payphones to discuss their illicit activities and
spoke in guarded language while on the wiretapped phones,
the FBI obtained substantial evidence from the wiretaps.
Following a “reverse sting” operation, the FBI arrested Eiland
and Miller in August 2004. The government charged twenty-
one defendants in a 100-count superseding indictment. The
defendants were charged with conspiring to distribute heroin,
cocaine, cocaine base, and PCP between 1999 and 2004 in
Virginia, the District of Columbia, and Maryland.
The defendants who did not plead guilty were separated
into two groups for trial. Prior to the first trial, many of the
defendants, including Eiland and Miller, moved to suppress
the wiretap evidence because, they argued, the authorization
violated the wiretap statute, 18 U.S.C. § 2510 et seq. The
district court denied defendants’ motions. United States v.
Eiland, 398 F. Supp. 2d 160 (D.D.C. 2005). The government
4
relied heavily on the more than 14,000 recorded telephone
conversations at both trials.
The first trial group, consisting of Frederick Miller,
Timothy Thomas, and Corey Moore, went to trial in March
2006. The trial lasted two months, and the jury deliberations
lasted a month. Thomas was convicted of most charges,
including conspiring to commit a narcotics offense (cocaine)
and RICO conspiracy. Moore was acquitted of all charges.
Miller was found guilty of twenty-one counts of using a
communication device to facilitate a drug-trafficking offense.
The jury acquitted Miller of a count of PCP distribution and
several counts of communication offenses. The jury was
hung on the remaining counts against Miller, and the judge
declared a mistrial on those.
Following the mistrial, the government moved to join
Miller to the second group of defendants, scheduled to go to
trial in October 2006. Miller opposed the motion because his
court-appointed counsel from the first trial, Brian McDaniel,
was unavailable. Rather than delay the trial of the entire
second group or hold a separate trial for Miller, the court
appointed Thomas Saunders to represent Miller.
On October 3, 2006, the second group of defendants—
Robert Bryant, Alvin Gaskins, Gerald Eiland, and Frederick
Miller—proceeded to trial. On November 15, 2006, the jury
acquitted Bryant, the alleged PCP supplier for the conspiracy,
of all charges. The jury found Gaskins guilty of narcotics
conspiracy with regard to heroin only and acquitted Gaskins
of all other charges. This court later reversed Gaskins’s
conviction as resting upon insufficient evidence. United
States v. Gaskins, 690 F.3d 569 (D.C. Cir. 2012). The jury
found Eiland guilty of narcotics conspiracy (Count 1) with the
object of distributing heroin, cocaine, and cocaine base, but
5
not PCP; RICO conspiracy (Count 2); continuing criminal
enterprise (CCE) (Count 3); attempt to possess with intent to
distribute heroin (Count 4); and three counts of unlawful use
of a communication facility. The jury found Eiland not guilty
of six other communications counts and an accessory to
murder charge. Miller was convicted of narcotics conspiracy
(Count 1) with regard to heroin, cocaine, and cocaine base,
but not with regard to PCP; RICO conspiracy (Count 2); CCE
(Count 3); attempt to possess with intent to distribute heroin
(Count 5); and three counts of unlawful use of a
communication facility. The jury found Miller not guilty of
attempt to possess with intent to distribute PCP and five
additional communications counts.
Thus, the jury found the government had proved Miller
and Eiland conspired to traffic heroin, cocaine, and cocaine
base and committed the racketeering acts and CCE predicate
offenses involving those same narcotics. But the jury found
the government had not proved the charged offenses and acts
involving the trafficking of PCP.
At appellants’ sentencing hearings, the district court
dismissed the narcotics conspiracy charges against Miller and
Eiland as lesser-included offenses of the CCE counts. The
court sentenced each to concurrent sentences of life
imprisonment for RICO conspiracy and CCE, and lesser
terms of imprisonment on the other counts. The court
imposed a $7,000 fine on Miller for Counts 2 and 3.
Sentencing (Miller) Tr. at 7, Nov. 28, 2007. 1 It imposed a
1
The written judgment form for Miller states that the fine is
imposed on Counts 1 and 2. This appears to be a mistake because
the district court vacated Count 1 (narcotics conspiracy).
Furthermore, “the pronouncement of the sentence constitutes the
judgment of the court” and “the written judgment form is a nullity
6
$7,000 fine on Eiland for Count 1. Sentencing (Eiland) Tr. at
11, Nov. 28, 2007. Eiland and Miller filed timely notices of
appeal. This court decided to hear the appeal arising out of
the second trial separately from the appeal of the first trial. 2
II. Admissibility of Wiretap Evidence
Eiland and Miller cite several reasons the wiretap
evidence should have been suppressed. We address these
arguments in turn.
An application for an order authorizing a wiretap must
contain certain information, including “a full and complete
statement of the facts and circumstances relied upon by the
applicant, to justify his belief that an order should be issued.”
18 U.S.C. § 2518(1). A district court may authorize a wiretap
after assessing both probable cause and necessity and finding:
(1) probable cause exists to believe that an individual has
committed or is about to commit one of certain
enumerated offenses; (2) probable cause exists to believe
that particular communications concerning that offense
will be obtained through an interception; (3) normal
investigative procedures have been tried and have failed
or reasonably appear to be unlikely to succeed if tried;
and (4) probable cause exists to believe that the
communication facility sought to be wiretapped is being
used, or is about to be used, in connection with the
commission of the offense.
United States v. Carter, 449 F.3d 1287, 1292 (D.C. Cir. 2006)
(citing 18 U.S.C. § 2518(3)). An initial wiretap may be
to the extent it conflicts with the previously pronounced sentence.”
United States v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010).
2
Miller is also a party in the related appeal from the first trial.
7
approved for a maximum of thirty days and may be extended
for additional thirty-day periods upon a finding of continued
probable cause and necessity. 18 U.S.C. § 2518(3), (5).
The probable cause standard for the wiretap statute is the
same as the standard for a search warrant. See United States
v. Fairchild, 189 F.3d 769, 775 (8th Cir. 1999); United States
v. Diaz, 176 F.3d 52, 110 (2d Cir. 1999); United States v.
Armendariz, 922 F.2d 602, 608 (10th Cir. 1990); United
States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990). The
determination requires the authorizing court “to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before [it], including
the ‘veracity’ and ‘basis of knowledge’ of persons supplying
hearsay information, there is a fair probability that contraband
or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983).
The necessity requirement is satisfied if “traditional
investigative techniques have proved inadequate to reveal the
operation’s full nature and scope.” United States v. Becton,
601 F.3d 588, 596 (D.C. Cir. 2010). The necessity
requirement prevents law enforcement from resorting to
wiretapping where traditional investigative techniques would
suffice. Carter, 449 F.3d at 1293. “[A] court will give close
scrutiny to a contested wiretap application and will reject
generalized and conclusory statements that other investigative
procedures would prove unsuccessful.” Id. But because the
necessity requirement was not intended “to foreclose
electronic surveillance until every other imaginable method of
investigation has been unsuccessfully attempted,” the
government need only show “that other techniques are
impractical under the circumstances and that it would be
unreasonable to require pursuit of those avenues of
investigation.” Id.
8
In evaluating appellants’ objections to the district court’s
denial of their motions to suppress, we review the district
court’s legal conclusions de novo and its factual findings for
clear error. United States v. Johnson, 437 F.3d 69, 71 (D.C.
Cir. 2006). A reviewing court gives deference to the
authorizing court’s determinations of probable cause and
necessity. United States v. Glover, 681 F.3d 411, 419–20
(D.C. Cir. 2012); Johnson, 437 F.3d at 71. We review the
court’s necessity determination for abuse of discretion.
United States v. Sobamowo, 892 F.2d 90, 93 (D.C. Cir. 1989).
We “do[] not typically give a second layer of deference to a
district court’s assessment” of the authorizing court’s
determinations. Glover, 681 F.3d at 420.
A.
Appellants first argue the initial application for a wiretap
on Miller’s phone was inadequate because Agent Sparks’s
supporting affidavit contained “boilerplate” language
incompatible with the particularized facts required to establish
probable cause. Appellants’ argument is unavailing. Even if
the affidavit does contain some general language,
“[a]pplications are not to be read in a piecemeal fashion.”
United States v. Williams, 580 F.2d 578, 589 (D.C. Cir. 1978).
Sparks’s affidavit contains specific facts regarding the
locations where drug transactions took place, see, e.g., Sparks
Aff. 15–16, Feb. 13, 2004, Appellants’ App’x 272–73, and
the quantities of drugs and money observed by confidential
informants, see, e.g., id. at 16–18, Appellants’ App’x 273–75.
The affidavit also contains particularized facts regarding the
phone to be tapped. These facts are sufficient to establish
probable cause despite the fact that the phone’s subscription
was not in Miller’s name. See, e.g., id. at 21–23, Appellants’
App’x 278–80 (explaining that confidential informants had
described phone calls with Miller regarding drug activity and
9
that toll record and pen register analyses confirmed those
phone calls were made on the subject phone); id. at 5–6,
Appellants’ App’x 262–63 (stating that although the phone
subscription was not in Miller’s name, the investigation had
shown the phone was regularly used by Miller). The initial
wiretap application contained particularized facts sufficient to
establish each of the three probable cause requirements under
the wiretap statute. See Williams, 580 F.2d at 589
(“[S]ections of the affidavits are framed in conclusory
terminology, but they cannot rationally be separated from the
preceding detailed descriptions of the investigative events.”).
B.
Appellants also argue agents lacked probable cause to
support an extension of the Miller wiretap. Agent Sparks’s
affidavit states FBI agents had discovered Miller sometimes
used payphones to discuss drug activity in order to avoid
being picked up by any wiretaps. Sparks Aff. 19–20, Mar. 17,
2004, Appellants’ App’x 338–39. According to appellants,
this finding vitiates any determination that there was probable
cause to believe continued wiretaps would lead to the
discovery of relevant communications. But Sparks’s affidavit
also contained plenty of examples of relevant calls picked up
during the initial wiretap period. See id. at 16–17,
Appellants’ App’x 335–36 (describing conversations in which
Miller agreed to send a courier to California and discussions
regarding how to escape fraud detection at airports); id. at 21,
Appellants’ App’x 340 (describing a call in which one
participant accidently referred to heroin without using coded
language). Although the wiretaps were less successful
because the defendants used payphones to escape detection,
Sparks’s extension affidavits demonstrated that the wiretaps
did have some value to the investigation. See United States v.
Giordano, 416 U.S. 505, 532–33 (1974) (where a wiretap
10
extension application shows that the wiretap produced results
during the initial period, there is probable cause to believe the
wiretap will continue to pick up communications concerning
the offenses being investigated). The extension authorizations
were supported by probable cause.
C.
Eiland and Miller next argue the initial wiretap
application for Miller’s phone did not satisfy the necessity
requirement. They note the government had numerous
cooperating witnesses and informants who were able to
provide the government with adequate high-level inside
information, and they complain the wiretap applications also
did not explain why physical surveillance, pen registers, or
toll-record analyses were inadequate to achieve the
government’s investigatory goals.
Agent Sparks’s initial Miller affidavit provides detailed
information about aspects of the conspiracy learned from
cooperating witnesses. Sparks noted the FBI had attempted to
obtain additional high-level informants but had not succeeded.
See Sparks Aff. 28, Feb. 13, 2004, Appellants’ App’x 285
(noting the government offered Cinquan Blakney an
opportunity to cooperate but he declined). The affidavit also
states that no informants could safely provide other detailed
information including: (a) the means by which the drugs were
obtained; (b) the manner and timetable of shipments; (c) the
locations where drugs and illegally obtained assets were
hidden; or (d) the manner in which the defendants concealed
their activities. Id. at 53, Appellants’ App’x 310. The
affidavit is sufficiently detailed with regard to both the
information obtained, and the type of information not
obtainable, from informants.
11
Appellants say Victoria Owens (CW5) was a high-level
informant who could give the government any necessary
information about the conspiracy. But the affidavit
demonstrates that even Owens did not have access to the most
closely held secrets. Owens was not one of the few trusted
people to whom Miller gave his phone number. Id. at 22–23,
Appellants’ App’x 279–80; see Carter, 449 F.3d at 1294
(wiretap affidavit adequately demonstrated necessity where it
stated reasons why use of undercover informants would be
inadequate to reveal the full nature and scope of the drug
conspiracy). Furthermore, Owens would have been a
problematic witness at trial—she was a known drug-user who
was cooperating with the government as part of a plea
agreement. It was reasonable for the government to seek
wiretap evidence that would corroborate Owens’s information
and convince a jury at trial. See Sparks Aff. 52, Feb. 13,
2004, Appellants’ App’x 309 (stating that wiretaps were
needed to establish proof beyond a reasonable doubt).
Sparks’s affidavit also explained that the conspirators
were adept at detecting physical surveillance and had moved
away from the area previously captured by a pole camera. Id.
at 49–51, Appellants’ App’x 306–08. While the use of a pen
register had provided some information to the FBI, it could
not convey to the government the substance of Miller’s calls.
Id. at 58–59, Appellants’ App’x 315–16.
In sum, the wiretap applications described the relevant
evidence that had been gathered through the use of traditional
investigative techniques. The government was not obligated
to include in the applications every detail known to it
concerning the conspiracy. See United States v. Maynard,
615 F.3d 544, 550 (D.C. Cir. 2010) (“At best, the appellants
suggest investigative techniques that might have provided
some of the evidence needed, but they give us no reason to
12
doubt the district court’s conclusion that having engaged in an
adequate range of investigative endeavors, the government
properly sought wiretap permission and was not required to
enumerate every technique or opportunity missed or
overlooked.”); Becton, 601 F.3d at 597 (holding that various
omissions from the wiretap affidavits did not undermine the
government’s necessity showing because the omissions were
not material and the government had “adequately
demonstrated the failure of normal investigative techniques to
reveal the full nature and scope of the conspiracy”). It
adequately demonstrated that traditional investigative
techniques had been employed and holes remained in the
evidence that could only reasonably be filled by a wiretap.
The authorizing court did not abuse its discretion in finding
that a wiretap was necessary for the government’s
investigation.
D.
Appellants contend information discovered after the
district court denied their motions to suppress demonstrates
the wiretap applications contained critical misstatements that
made an accurate determination of probable cause and
necessity impossible. Specifically, appellants discovered that
the cooperating witness referred to in the wiretap applications
as CW5 was Victoria Owens, who shared a house with Miller.
Appellants say if they had known CW5’s identity, they could
have successfully argued before the district court that the
government had failed to provide the authorizing court with
salient information undermining CW5’s credibility. The
government purposely concealed Owens’s identity, according
to appellants, so as not to undermine the evidence establishing
probable cause. Appellants also make a contradictory
argument. Because Owens was a trusted confidant of the
drug conspiracy’s leaders and could obtain valuable inside
13
information, the government was not able to show that a
wiretap was necessary. Both arguments fail.
Appellants did not raise these arguments before the
district court in their motion to suppress, nor did they renew
that motion after they learned of CW5’s identity. Thus, the
arguments were forfeited and our review is only for plain
error. See United States v. Olano, 507 U.S. 725, 732–35
(1993). Owens’s identity was not hidden from the authorizing
judge. See Notice 1, Feb. 13, 2004, D.D.C. Misc. No. 04-64,
Gov’t Supplemental App’x 1. The authorizing court had the
information necessary to evaluate Owens’s credibility,
including information concerning her drug use, her past
untruthful testimony, and her cooperation agreement with the
government. Appellants offer no reason for the court to
conclude that further information about Owens would have
altered the court’s determination of her credibility or
otherwise undermined its finding of probable cause.
Additionally, there was enough evidence aside from that
supplied by Owens to establish probable cause. With regard
to the necessity determination, the government described
information to which Owens did not have access and showed
that a wiretap was necessary despite her cooperation. Thus,
the omissions affected neither the determination of probable
cause nor the determination of necessity. See Becton, 601
F.3d at 597.
Moreover, the defendants did not request disclosure of
CW5’s identity in support of their request for a Franks
hearing. 3 Because appellants failed to seek that disclosure
3
When the defendants filed their motions to suppress, they also
requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154,
155–56 (1978), to inquire whether Agent Sparks had intentionally
or recklessly included a material false statement in the wiretap
affidavit. However, the statements defendants alleged were false
14
and did not argue before the district court that the government
improperly masked CW5’s identity, that argument is also
forfeited on appeal. See Flynn v. Comm’r, 269 F.3d 1064,
1068–69 (D.C. Cir. 2001) (“Generally, an argument not made
in the lower tribunal is deemed forfeited and will not be
entertained absent exceptional circumstances.”). 4 Appellants
have not demonstrated that either the masking of Owens to
protect her from retaliation or the district court’s failure to
hold a Franks hearing on the basis of that masking affected
their substantial rights. See Olano, 507 U.S. at 734.
E.
Appellants’ final argument with regard to the wiretap
evidence is that the authorizing court should not have
authorized extensions where, appellants contend, the
government did not describe the investigation’s progress in its
extension applications. An application for an extension must
include “a statement setting forth the results thus far obtained
from the interception, or a reasonable explanation of the
failure to obtain such results.” 18 U.S.C. § 2518(1)(f). The
purpose of this provision is to “permit the court realistically to
were unrelated to CW5’s identity or credibility. Appellants do not
allege the district court erred by denying the motion for a Franks
hearing based on the arguments actually presented to it.
4
Appellants also argue that by not listing CW12, who Miller asserts
is Rashawn Briggs, in the initial wiretap application affidavit, the
government omitted the critical fact that a knowledgeable and
trusted insider was cooperating, thus preventing the authorizing
court from making a reliable finding of necessity. But the record
shows that Briggs was in a halfway house from January 16, 2004 to
March 5, 2004. Oct. 19, 2006 AM Trial Tr. at 11. Briggs was not
mentioned in the initial February 13, 2004 affidavit because he was
not able to provide assistance to the investigation until he left the
halfway house. See id. at 106.
 15
appraise the probability that relevant conversations will be
overheard in the future.” Giordano, 416 U.S. at 532. Each of
the government’s extension applications includes a lengthy
“summary of pertinent calls.” See, e.g., Sparks Aff. 13–33,
Mar. 17, 2004, Appellants’ App’x 332–52. Sparks’s
affidavits detail the results of the wiretaps and the
shortcomings of continued traditional investigative
techniques. The extension applications demonstrated that the
wiretaps were producing results and thus established
continuing probable cause. See Giordano, 416 U.S. at 532–
33. The authorizing court did not err in granting the
government’s applications for extensions.
III. Overview Witness Testimony
The district court erred, appellants say, by permitting
government witnesses to give improper overview testimony.
The government’s first witness at trial was FBI Agent John
Bevington. Agent Bevington testified as an expert on
investigations of illegal conspiracy cases. Oct. 4, 2006 AM
Trial Tr. at 11–12. Specifically, Agent Bevington began his
testimony with a definition of conspiracy 5 and explained
conspiracies are conducted secretly, often using coded
language. Id. at 14–17. Agent Bevington also testified about
investigative techniques, like controlled drug buys, search
warrants, surveillance, and interviews. Id. at 19–26. He
described the procedure for obtaining a search warrant and
authorization for a wiretap and explained how the FBI
monitors a wiretap. Id. at 25–33. Appellants complain this
background testimony was erroneously admitted because it
was unrelated to matters beyond a lay jury’s understanding
and would not help the jury “to understand the evidence or to
determine a fact in issue.” FED. R. EVID. 702.
5
Agent Bevington testified that a conspiracy is “an agreement
between two or more people to commit criminal acts.” Id. at 14.
 16
Agent Bevington’s background testimony was properly
admitted. “The operations of narcotics dealers repeatedly
have been found to be a suitable topic for expert testimony
because they are not within the common knowledge of the
average juror.” United States v. Boney, 977 F.2d 624, 628
(D.C. Cir. 1992); see also United States v. Perez, 280 F.3d
318, 341–42 (3d Cir. 2002) (permitting expert testimony
regarding drug traffickers’ use of cell phones and pagers to
frustrate police investigations); United States v. Gil, 58 F.3d
1414, 1421–22 (9th Cir. 1995) (permitting modus operandi
testimony about drug traffickers’ counter-surveillance
techniques because “[s]uch evidence helps the jury
understand complex criminal activities, and alerts it to the
possibility that combinations of seemingly innocuous events
may indicate criminal behavior”); United States v. Tapia-
Ortiz, 23 F.3d 738, 741 (2d Cir. 1994) (“[T]he Government
was justified in introducing expert testimony explaining that
drug traffickers employ certain techniques, such as using
beepers, cash, and nicknames, in order to avoid detection.”).
Courts have also permitted law enforcement agents to testify
as experts on investigative techniques. Cf. United States v.
Miller, Nos. 07-3135 & 07-3139, slip op. at 11 (D.C. Cir.
Dec. 27, 2013) (FBI Agent Sparks’s lay testimony about
investigative techniques would not have been error had
Sparks testified as an expert).
Agent Bevington’s testimony fits within the type of
modus operandi expert testimony permitted by this and other
courts, and his description of investigative techniques
provided useful background information. The district court’s
admission of this testimony—which aided the jury in
assessing the quality of the evidence—was not error. 6
6
Even if Agent Bevington’s testimony had introduced error,
appellants have not alleged any prejudice as a result.
17
Appellants also argue Agent Bevington improperly
vouched for the cooperating witnesses. Agent Bevington
explained information given by a cooperating witness was
usually corroborated by the FBI: “[E]ven if we don’t know it
at that particular time, we have the ability to investigate
anything they tell us and determine whether or not they are
being truthful and accurate.” Oct. 4, 2006 AM Trial Tr. at 34;
see also id. at 37 (“Before the government will agree to the
plea agreement . . . we’re going to know the information
they’re providing is correct or we’re going to go out and
conduct further investigation to determine what they have
been telling us is correct.”). Agent Bevington described the
various corroborative techniques. Id. at 37–38. However,
testifying as an expert witness, he disclaimed any specific
knowledge regarding the cooperating witnesses in this case;
he spoke only about the process of obtaining cooperating
witnesses generally. Id. at 44–45.
Defendants’ motion in limine to limit the testimony of the
government’s expert witnesses did not address the errors
claimed on appeal. See Eiland Mot. in Limine, July 15, 2006,
D.D.C. 04-379, ECF No. 697. Defendants’ motion asked the
court to order the government to comply with Federal Rule of
Criminal Procedure 16(a)(1)(G) by giving the defendants a
written summary of the proposed witness testimony. 7 Id.
Eiland also requested limitations on the breadth and scope of
expert testimony, asking that the experts not be allowed to act
as “super-narrators who guide the jury through the evidence
in a manner that combines hearsay, frustrates cross-
examination, and usurps the jury’s function.” Id. at 3. At no
point did any of the defendants object to Agent Bevington’s
7
Defendants’ objection at trial similarly only concerned the
government’s compliance with Rule 16(a)(1)(G). Oct. 4, 2006 AM
Trial Tr. at 13–14.
18
testimony regarding the development or credibility of
cooperating witnesses. Therefore, we review this portion of
Agent Bevington’s testimony for plain error. See United
States v. Brown, 508 F.3d 1066, 1068 (D.C. Cir. 2007).
To establish plain error, appellants must show there was
“(1) a legal error that was (2) ‘plain’ (a term that is
synonymous with ‘clear’ or ‘obvious’), and that (3) affected
[their] substantial rights.” United States v. Wilson, 605 F.3d
985, 1022 (D.C. Cir. 2010). Even when plain error is
demonstrated, “we . . . reverse only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. Appellants “bear[] the burden of proving
each element under this standard.” Id.
Agent Bevington’s cooperating witness testimony
constitutes plain error in light of this court’s holding in United
States v. Moore, 651 F.3d 30, 59–61 (D.C. Cir. 2011), decided
after appellants’ trial. 8 In Moore, an FBI agent similarly
testified that cooperating witnesses had inside information the
FBI would try to verify before striking a deal with them. 651
F.3d at 59. This court found the “clear implication was that
the government had selected only truthful co-conspirator
witnesses for the pre-indictment investigation, from whom the
jury would hear during the trial.” Id. at 59–60. Such
testimony infringes on the jury’s role as the sole judge of a
witness’s credibility. Id. at 59. Agent Bevington’s testimony
was improper insofar as he vouched for the reliability of the
investigation and the cooperating witnesses the government
planned to have testify at trial. See id. at 60.
8
The “plainness” of an error is evaluated as of the time of appellate
review, not the time of the district court’s decision. Henderson v.
United States, 133 S. Ct. 1121, 1127–29 (2013).
19
Nevertheless, we think any error introduced is harmless.
Bevington’s testimony did not affect appellants’ substantial
rights or affect the fairness, integrity, or public reputation of
the proceedings. Prior to Agent Bevington’s testimony, the
court instructed the jury it was “not bound by an expert’s
opinion,” Oct. 4, 2006 AM Trial Tr. at 12, and the court in its
preliminary and final instructions told the jury it was the sole
judge of witness credibility, Oct. 3, 2006 AM Trial Tr. at 97–
98; Nov. 7, 2006 AM Trial Tr. at 101. The court’s final jury
instructions included a warning to the jury that “[a] witness
who realizes that he may be able to obtain his or her own
freedom or receive a lighter sentence by giving testimony
may have a motive to lie. The testimony of a witness who has
entered into a plea agreement should be received with caution
and scrutinized with care.” Nov. 7, 2006 AM Trial Tr. at 106.
The court’s instructions thus minimized any harm caused by
Bevington’s vouching. See Moore, 651 F.3d at 62 (certain
errors “had no prejudicial effect in view of limiting
instructions”).
Furthermore, the impact of Agent Bevington’s testimony
was mitigated by other factors. Unlike in Moore—where this
court also found the error harmless—Agent Bevington
acknowledged he had no knowledge of the particular
cooperating witnesses who would testify in appellants’ trial.
On cross-examination, Eiland’s attorney got Bevington to
agree that sometimes cooperating witnesses lie and that
ultimately law enforcement officers have to make a
“subjective” judgment as to whether the witness is credible.
Oct. 4, 2006 AM Trial Tr. at 52–53. Here, even without the
cooperating witnesses, there was significant evidence of
appellants’ guilt, including corroborating wiretaps. See
Brown, 508 F.3d at 1074 (prosecutor’s error in vouching for a
government witness did not require reversal because the other
evidence weighed heavily against defendant and because the
20
judge had instructed the jury that it was the sole judge of
witness credibility); see also United States v. Rawlings, 522
F.3d 403, 410–13 (D.C. Cir. 2008). Appellants have not met
their burden of demonstrating that the error affected their
substantial rights. 9
IV. Lay Opinion Testimony Interpreting Wiretap Evidence
We have held that a lay witness may not give opinion
testimony interpreting cryptic evidence when the testimony
violates Federal Rule of Evidence 701. See United States v.
Hampton, 718 F.3d 978, 981–83 (D.C. Cir. 2013); see id. at
985–86 (Brown, J., concurring). Appellants contend the
district court violated this rule in allowing FBI Agent Hall, a
government witness, to give lay opinion testimony
interpreting the calls intercepted by the government’s
wiretaps. Agent Hall, who participated in the investigation of
appellants’ drug operation, testified numerous times
throughout the trial. At times, Agent Hall’s testimony was
intended to put in context the recorded calls played at trial.
However, even if Agent Hall’s testimony constituted plain
9
To the extent appellants object to Agent Bevington’s testimony
regarding the mechanics of a plea deal, there was no plain error.
Agent Bevington merely stated that after a cooperating witness’s
compliance is complete, the government files a motion giving the
court discretion to depart from a mandatory minimum in sentencing
the witness. Oct. 4, 2006 AM Trial Tr. at 39. “This court has held
that plea agreements can be introduced by the prosecution and
referred to in their entirety, because so doing does not improperly
bolster the witness who signed the plea agreement.” Brown, 508
F.3d at 1074. The court has only suggested that “use of the
‘truthfulness’ portions of plea agreements becomes impermissible
vouching when the prosecutors explicitly or implicitly indicate that
they can monitor and accurately verify the truthfulness of the
witness’ testimony.” Id. Moreover, any error would not be
reversible for the reasons discussed above.
21
error under Hampton, appellants have not demonstrated error
warranting reversal. Appellants’ briefs fail to specifically
describe the allegedly erroneous testimony or how it may
have affected the convictions. Appellants have failed to
demonstrate any error was substantially prejudicial.
V. Replacement of Miller’s Appointed Counsel Prior to the
Second Trial
Miller argues he was denied his Sixth Amendment right
to counsel when the district court, over his objection, replaced
his appointed counsel from the first trial with new counsel
prior to the second trial. 10 Miller says the Sixth Amendment
10
In addition, Miller claims he was denied his constitutional right
to be present at all stages of his trial because the district court
decided to replace Miller’s counsel outside Miller’s presence. We
need not decide now whether a defendant has a right to be present
at a hearing on replacing counsel. See Kentucky v. Stincer, 482
U.S. 730, 745 (1987) (“[The] privilege of presence is not
guaranteed when presence would be useless, or the benefit but a
shadow, [but] due process clearly requires that a defendant be
allowed to be present to the extent that a fair and just hearing would
be thwarted by his absence.”). Miller was present at the June 26,
2006 hearing at which the court heard the government’s motion to
join Miller to the trial of the second group of conspirators. Hr’g Tr.
at 3, June 26, 2006. At that hearing the court also considered
Miller’s opposition to that motion and Miller’s request for a
severance or postponement. Id. at 4–5. Miller had an opportunity
to tell the court, through counsel, he wished to have McDaniel
continue to represent him. Id. Although Miller filed a written
motion for severance later, on July 2, the court heard and
considered argument at the June 26 hearing. Miller did not attend
the brief status conference on July 18 at which the court ordered
Miller joined to the second trial and appointed Saunders to
represent him. But the court did not hear argument on July 18.
Thus, Miller was present at the only hearing where his presence
22
compels a different rule: once an indigent defendant and his
appointed counsel develop an attorney–client relationship, the
defendant has a constitutional right to continued
representation by that attorney.
Even assuming arguendo Miller had a Sixth Amendment
right to continued representation, such a right is not absolute
where a continuance is sought to retain or replace counsel of
choice. United States v. Burton, 584 F.2d 485, 489 (D.C. Cir.
1978). Rather, the defendant’s right “must be carefully
balanced against the public’s interest in the orderly
administration of justice.” Id. The district court considers
such a motion for a continuance in its sound discretion and “is
not subject to review absent a clear abuse.” Id. at 489–90.
“Trial judges necessarily require a great deal of latitude in
scheduling trials. Not the least of their problems is that of
assembling the witnesses, lawyers, and jurors at the same
place at the same time, and this burden counsels against
continuances except for compelling reasons.” Morris v.
Slappy, 461 U.S. 1, 11 (1983). Among the factors to be
weighed by the trial judge in considering a motion for a
continuance are
the length of the requested delay; whether other
continuances have been requested and granted; the
balanced convenience or inconvenience to the litigants,
witnesses, counsel, and the court; whether the requested
delay is for legitimate reasons, or whether it is dilatory,
purposeful, or contrived; whether the defendant
contributed to the circumstance which gives rise to the
request for a continuance; whether the defendant has
might have been useful—the June 26 hearing. Miller fails to offer
any reason to suggest his attendance at the July 18 conference
would have served any purpose, particularly as he had previously
fully conveyed his views to the district court.
23
other competent counsel prepared to try the case,
including the consideration of whether the other counsel
was retained as lead or associate counsel; whether
denying the continuance will result in identifiable
prejudice to defendant’s case, and if so, whether this
prejudice is of a material or substantial nature; [and] the
complexity of the case.
Burton, 584 F.2d at 490–91. “In weighing these factors, we
presume that the trial judge’s decision was reasonable, and
find a violation of the right to the effective assistance of
counsel only if the denial of a continuance was unreasoning
and arbitrary.” United States v. Poston, 902 F.2d 90, 97 (D.C.
Cir. 1990).
Applying the relevant Burton factors to this case, we
conclude that, even if Miller had a Sixth Amendment right to
continued representation by his appointed counsel, the district
court did not abuse its discretion in denying Miller’s motion
for a continuance and replacing Miller’s counsel. Because of
McDaniel’s busy trial calendar, Miller was requesting a
seven-month continuance. The district court reasonably
concluded this was too long for Miller’s co-defendants, who
were being held without bail, to wait for their joint trial. See
Hr’g Tr. at 12, June 26, 2006. On the other hand, severing
Miller’s trial would have imposed an enormous
inconvenience on the government, witnesses, and the court,
which would have had to repeat a three-month trial for the
third time. 11 Thomas Saunders had a clear calendar to
11
Miller moved for a continuance for the second trial group or, in
the alternative, a severance so Miller could be tried separately at a
later time when McDaniel was available to continue his
representation. Miller’s motion for a severance here is nothing
more than a motion for an individual continuance. Thus, we review
24
prepare for Miller’s trial with the second group of defendants
in October 2006, see Hr’g Tr. at 2, July 18, 2006, and the
judge required McDaniel to continue his representation
through the beginning of voir dire to help Saunders prepare
for trial. See id. at 2–3; Order, July 18, 2006, D.D.C. 04-379,
ECF No. 701. The judge offered to assist Saunders by
holding prompt status conferences any time that would aid
Saunders’s preparation. Hr’g Tr. at 3, July 18, 2006. In these
circumstances, it was reasonable for the trial court to conclude
that two months would provide Saunders with enough time to
prepare for trial, particularly because he had the advantage of
being able to review the proceedings of the first trial in which
Miller was tried on the same charges.
Miller also has not shown any harm from the district
court’s decision. “In order to obtain reversal, an appellant
must show that actual prejudice resulted from denial of the
continuance.” United States v. Celis, 608 F.3d 818, 839 (D.C.
Cir. 2010). There is no indication Saunders was not fully
prepared by the time trial started. To the contrary, when just
prior to trial the government moved for a continuance to
accommodate an ill witness, Saunders opposed that motion.
Resp. to Gov’t Mot. to Continue, September 5, 2006, D.D.C.
No. 04-379, ECF No. 766. Miller is unable to point to any
way in which he was denied effective assistance of counsel. 12
The district court did not err in deciding to retry Miller
with the second group of defendants, to hold the second trial
the district court’s denial of the alternate motions under the same
standard.
12
At oral argument Miller’s counsel stated that the short time
Saunders had to prepare created an “appearance of unfairness.” But
without actual prejudice, a district court’s denial of a continuance is
not reversible error. See Celis, 608 F.3d at 839.
25
as originally scheduled in October 2006, and to replace
Miller’s appointed counsel to adhere to that trial date.
VI. Sufficiency of the Evidence Against Miller
Miller contends there was insufficient evidence presented
at trial to sustain three of his convictions. The court reviews
challenges to the sufficiency of the evidence “de novo,
viewing the evidence in the light most favorable to the
government, and affirming a guilty verdict where any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v.
Littlejohn, 489 F.3d 1335, 1338 (D.C. Cir. 2007). The court
“give[s] full play to the right of the jury to determine
credibility, weigh the evidence and draw justifiable inferences
of fact.” Id.
A. Continuing Criminal Enterprise
Miller argues, through counsel, there was insufficient
evidence for the jury to convict him of engaging in a
continuing criminal enterprise in violation of 21 U.S.C. § 848.
To convict a defendant of CCE, the government must prove
the defendant committed: “1) a felony violation of the federal
narcotics law; 2) as part of a continuing series of violations;
3) in concert with five or more persons; 4) for whom the
defendant is an organizer or supervisor; 5) from which he
derives substantial income or resources.” Moore, 651 F.3d at
80. Miller contends the government failed to prove he
“occupie[d] a position of organizer, a supervisory position, or
any other position of management” with regard to five or
more people. 21 U.S.C. § 848(c)(2)(A). To satisfy this
element, the government must show the defendant “specifie[d
the supervisees’] activities in adequate detail.” United States
v. Williams-Davis, 90 F.3d 490, 508 (D.C. Cir. 1996). The
defendant must have “exercise[d] some sort of managerial
26
responsibility.” Id. “Delegation of management to an
intermediate supervisor does not prevent lower-level
subordinates from being counted in the continuing criminal
enterprise statute.” United States v. Delgado, 4 F.3d 780, 785
(9th Cir. 1993). The government identifies five individuals
whom it claims were Miller’s supervisees: Timothy Thomas,
Tyrone Thomas, Charles Brown, Darius Ames, and Jay
Ingram.
There was sufficient evidence for a jury rationally to find
Miller exercised a supervisory role over Tyrone Thomas and
Timothy Thomas. Miller exercised a supervisory role over
both of these individuals in arranging for Tyrone to transport
money to Arizona and to transport cocaine back to
Washington, D.C. “Drug runners can be considered
managees for purposes of 21 U.S.C. § 848.” United States v.
Wilson, 605 F.3d 985, 1030 (D.C. Cir. 2010). In March 2004,
Miller called Tyrone and arranged for him to drive to
Washington. Oct. 10, 2006 PM Trial Tr. at 71–73. Miller
then told Tyrone that Timothy Thomas would introduce
Tyrone to Eiland, with whom Tyrone would be exchanging
the money for drugs in Arizona. Id. at 73–74. As Tyrone was
transporting the cocaine back to Washington, Miller kept in
contact with Timothy Thomas, who was checking on
Tyrone’s progress. Oct. 12, 2006 AM Trial Tr. at 82–83;
Calls 5589, 5659, Gov’t Supplemental App’x 51–53. When
Tyrone told Timothy Thomas the cocaine had been lost,
Miller organized the response, at one point instructing
Timothy to get the baggage claim number for Tyrone’s bag.
Oct. 11, 2006 AM Trial Tr. at 24–26; Call 6154, Gov’t
Supplemental App’x 55–56. This evidence establishes Miller
exercised the requisite supervisory control over both Tyrone
Thomas and Timothy Thomas, organizing the transportation
of money and drugs.
27
The government also presented sufficient evidence to
establish Miller was a manager of Charles Brown. When
Tyrone claimed that the cocaine he shipped by bus was lost,
Miller recruited Brown to help find the cocaine. Oct. 12,
2006 PM Trial Tr. at 13–14; Call 6133, Gov’t Supplemental
App’x 54. At another time Miller arranged for Brown to
accept a package of heroin for Miller. Oct. 18, 2006 AM
Trial Tr. at 31–32.
The government’s evidence with regard to Darius Ames
is weaker but still sufficient to support the jury’s conclusion
that Ames was a supervisee of Miller. Darius Ames bagged
heroin for Eiland. Oct. 4, 2006 PM Trial Tr. at 26–27. On a
few occasions Miller came into the stash apartment where
Ames was bagging and took heroin. Id. at 43–44; Oct. 5,
2006 AM Trial Tr. at 8–14. Miller would measure out 25
grams of heroin, stretch it to 50 grams, bag it, and leave
$1,000 with Ames, directing him to give the money to Eiland.
Oct. 5, 2006 AM Trial Tr. at 8–14. In another instance,
Eiland, who was out of town at the time, directed Ames to
pick up a shoe box from Miller. Id. at 15–16. Miller was to
call Ames when Miller was ready for Ames to pick it up. Id.
When Miller called Ames, Ames drove to meet Miller and,
following Miller’s instruction, went through the alleyway to
the back door and into the basement of Miller’s aunt’s house.
Id. at 16; Oct. 4, 2006 PM Trial Tr. at 57. Miller proceeded to
give Ames a shoebox of money that Ames took and stored for
Eiland. Oct. 4, 2006 PM Trial Tr. at 57–58. Together, this
evidence, although not strong, supports the inference that
Ames was Miller’s subordinate. Both Miller and Eiland
viewed Ames as a lower-level conspirator—a gofer whom
they were free to direct. Under the deferential standard we
apply on reviewing a sufficiency challenge, we conclude a
jury rationally could have found Ames to be a supervisee of
Miller.
28
Nevertheless, the government failed to produce sufficient
evidence to demonstrate that Jay Ingram was supervised by
Miller. FBI Agent Hall testified that Ingram was a lieutenant
in the organization and was Miller’s cousin. Oct. 17, 2006
AM Trial Tr. at 56. But Ingram’s familial relation to Miller is
irrelevant, and Agent Hall’s description of Ingram as a
lieutenant is conclusory. The agent’s opinion regarding
Miller’s role has no more weight than the facts upon which it
is based, and those were insufficient. There was evidence that
Ingram obtained PCP from Miller. Oct. 19, 2006 PM Trial
Tr. at 52–53. But a buyer–seller relationship, without more,
does not suggest a managerial relationship. See United States
v. Mitchell, 49 F.3d 769, 772 (D.C. Cir. 1995); see also
United States v. Witek, 61 F.3d 819, 822–23 (11th Cir. 1995)
(“Buyers and sellers often need to accommodate one another
when meeting and arranging for delivery. Such conduct is
simply incidental to the buyer-seller relationship.”). A dealer
who simply sells drugs to other dealers and is paid from the
proceeds of their sales, but who has no other involvement in
their sales, does not exercise the managerial control required
for a CCE conviction. Id. There was no evidence presented
at trial that Miller played any ongoing role in Ingram’s sales
after supplying Ingram with PCP. Furthermore, the jury’s
verdict demonstrates that it did not deem the PCP evidence
credible. The jury found Miller not guilty of all PCP-related
charges.
The government points to an intercepted phone call in
which Eiland, who was looking for drugs, called Miller and
asked where Ingram was. Oct. 17, 2006 AM Trial Tr. at 56–
57, 65; Call 1172, Gov’t Supplemental App’x at 37. Miller
responded that Ingram was with him. Id. Rashawn Briggs, a
cooperating witness, also testified he once saw Eiland, Miller,
and Ingram meeting outside a carry-out restaurant. Oct. 19,
2006 AM Trial Tr. at 34–36. None of this evidence suggests
29
Miller acted in a supervisory capacity with regard to
Ingram. 13 This evidence of association is not enough to prove
that Miller managed Ingram.
The government’s evidence at trial was insufficient to
convince a rational jury beyond a reasonable doubt that Miller
acted as an organizer, supervisor, or manager for five or more
individuals. Because the government failed to establish one
of the elements of CCE, we vacate Miller’s conviction on this
count.
B. Narcotics Conspiracy
In a supplemental pro se brief, Miller challenges the
sufficiency of the evidence for his conviction of narcotics
conspiracy. In particular, Miller argues the evidence
introduced at trial varied from the indictment because it
established multiple conspiracies rather than the single
overarching drug conspiracy charged and that he was
prejudiced by this variance. Even though the narcotics
conspiracy conviction was vacated by the district court as a
lesser included offense of CCE, we address Miller’s argument
because the CCE conviction must be vacated and the
narcotics conspiracy conviction can now be reinstated.
To establish the existence of a narcotics conspiracy in
violation of 21 U.S.C. § 846, the government must show an
agreement between at least two people to violate narcotics
13
There was substantial evidence presented at trial showing that
Ingram was a supervisee of Eiland. See Oct. 4, 2006 PM Trial Tr.
at 58–71 (Ames testifying that Eiland twice took Ames and Ingram
to Phoenix to purchase heroin); Oct. 19, 2006 AM Trial Tr. at 15
(Briggs testifying that Ingram distributed cocaine base and heroin
for Eiland). There was not the same evidence with regard to
Miller’s relationship with Ingram.
30
law. United States v. Baugham, 449 F.3d 167, 171 (D.C. Cir.
2006). “In determining whether the evidence supports a
finding of a single conspiracy or instead only demonstrates
multiple conspiracies, we look at whether the defendants
shared a common goal, any interdependence between the
alleged participants, and any overlap among alleged
participants, such as the presence of core participants linked
to all the defendants.” United States v. Gatling, 96 F.3d 1511,
1520 (D.C. Cir. 1996). To warrant reversal, the defendant
bears the burden of showing “(1) that the evidence established
the existence of multiple conspiracies, rather than the one
conspiracy alleged in the indictment, and (2) that because of
the multiplicity of defendants and conspiracies, the jury was
substantially likely to transfer evidence from one conspiracy
to a defendant involved in another.” United States v.
Tarantino, 846 F.2d 1384, 1391 (D.C. Cir. 1988). The court
will uphold the verdict if the evidence adequately supports the
jury’s finding that a single conspiracy existed. Id.
Miller demonstrates neither variance nor prejudice. The
goal of the conspiracy, as demonstrated at trial, was to
distribute mass quantities of drugs for profit. The evidence
demonstrated the substantial profit the defendants reaped
from their participation in the conspiracy. Additionally, there
was substantial interdependence among the defendants. The
evidence at trial exposed a large section of the conspiracy’s
procurement and distribution chain. For instance, Miller and
Eiland arranged for Tyrone Thomas to travel to Arizona to
purchase wholesale amounts of cocaine. At one time Miller
also arranged for Brown to accept a package of heroin on his
behalf. Oct. 18, 2006 AM Trial Tr. at 31–32. The conspiracy
employed Darius Ames and Eric Butcher to process and bag
heroin for street-level distribution. Oct. 4, 2006 PM Trial Tr.
at 29–31; Oct. 19, 2006 PM Trial Tr. at 48–50. Eiland and
Miller also occasionally stretched heroin at the stash house.
31
Oct. 4, 2006 PM Trial Tr. at 43. Ricky Gore and Chester
Craig Simon would then obtain the heroin from Ames or
Eiland and distribute it to street-level sellers. Id. at 52–57;
Oct. 19, 2006 PM Trial Tr. at 30–35. Gore also obtained
crack from Eiland. Oct. 19, 2006 PM Trial Tr. at 44–46. The
government’s evidence clearly demonstrates the conspirators’
interdependence in obtaining, processing, and distributing the
narcotics. Each conspirator depended on the others to play
their roles in the scheme. Finally, this evidence also
establishes the overlap element—Miller and Eiland were key
participants in all of the acts, arranging for the purchase and
distribution of cocaine, heroin, and crack.
Even assuming there was a variance, Miller failed to
show he was substantially prejudiced by it. “The risk of
‘spillover prejudice,’ which may occur when a jury imputes
evidence from one conspiracy to a defendant involved in
another conspiracy, is less likely the fewer the defendants.”
United States v. Gaviria, 116 F.3d 1498, 1533 (D.C. Cir.
1997). Only four defendants were tried together in Miller’s
second trial. See id. (little risk of spillover prejudice where
only four defendants were tried). There is also less risk of
spillover prejudice where, as here, the government presents
wiretap evidence so that the jury can examine each individual
defendant’s words separately in order to convict. See id. The
jury’s not-guilty verdicts for Bryant on all charges and the
remaining defendants on the PCP-related charges suggest the
jury was able to consider the evidence against each defendant
and for each charge individually. See United States v.
Phillips, 664 F.2d 971, 1017 (5th Cir. Unit B 1981) (where
defendants were convicted on some counts and acquitted on
others, “the jury's verdict reflects that it carefully considered
the evidence supporting each charge against each defendant”).
32
The government presented sufficient evidence to sustain
Miller’s narcotics conspiracy conviction. The district court
vacated the conviction on this count as a lesser-included
offense of the continuing criminal enterprise conviction.
Because we vacate the CCE conviction, we will reinstate the
narcotics conspiracy count. See Rutledge v. United States,
517 U.S. 292, 306 (1996) (courts of appeal “may direct the
entry of judgment for a lesser included offense when a
conviction for a greater offense is reversed on grounds that
affect only the greater offense”); United States v. Baylor, 97
F.3d 542, 548 (D.C. Cir. 1996).
C. RICO Conspiracy
In his pro se brief, Miller also challenges the sufficiency
of the evidence supporting his RICO conspiracy conviction.
The RICO statute, 18 U.S.C. § 1962(d), makes it unlawful to
conspire to violate § 1962(c), which, in turn, provides that it is
unlawful for anyone “employed by or associated with any
enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity or collection
of unlawful debt.” 18 U.S.C. § 1962(c). Miller contends the
government failed to prove at trial the existence of either an
“enterprise” or “a pattern of racketeering activity.”
The RICO statute defines “enterprise” to include “any
union or group of individuals associated in fact although not a
legal entity.” 18 U.S.C. § 1961(4). An association-in-fact
enterprise must have three structural features: “a purpose,
relationships among those associated with the enterprise, and
longevity sufficient to permit these associates to pursue the
enterprise’s purpose.” Boyle v. United States, 556 U.S. 938,
946 (2009). An association-in-fact enterprise “need not have
33
a hierarchical structure or a ‘chain of command’; decisions
may be made on an ad hoc basis and by any number of
methods—by majority vote, consensus, a show of strength,
etc. Members of the group need not have fixed roles;
different members may perform different roles at different
times.” Id. at 948. “[P]roof of a pattern of racketeering
activity may be sufficient in a particular case to permit a jury
to infer the existence of an association-in-fact enterprise.” Id.
at 951.
A pattern of racketeering activity requires “two or more
related predicate acts of racketeering within a 10–year
period.” United States v. Crosby, 20 F.3d 480, 481 (D.C. Cir.
1994). The government must show that “the racketeering
predicates are related, and that they amount to or pose a threat
of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co.,
492 U.S. 229, 239 (1989).
The same evidence that supports the narcotics conspiracy
conviction supports the jury’s finding of an enterprise. The
enterprise’s purpose was to distribute drugs for profit. The
defendants organized themselves so each would carry out a
separate role in the distribution chain, with Eiland and Miller
overseeing the operation. Rashawn Briggs testified he was
dealing drugs with Eiland and Miller between 2000 and 2002.
Oct. 19, 2006 AM Trial Tr. at 56. Thus, the enterprise
continued for a period “sufficient to permit the[] associates to
pursue the enterprise’s purpose.” Boyle, 556 U.S. at 946.
The government also presented evidence establishing the
existence of an agreement to engage in a pattern of
racketeering activity. See Salinas v. United States, 522 U.S.
52, 65 (1997) (“A conspirator must intend to further an
endeavor which, if completed, would satisfy all of the
elements of a substantive criminal offense . . . .”). The jury
34
found the government proved agreement to commit three
racketeering acts—Act 1 (conspiracy to distribute heroin,
cocaine, and cocaine base), Act 4 (attempt to possess with
intent to distribute cocaine and unlawful use of a
communication facility), and Act 6 (attempt to possess with
intent to distribute heroin). Miller argues the proven acts
were not related. In fact, the predicate acts were related by
the nature of the acts (all narcotics offenses), temporal
proximity (the acts all occurred between 1999 and 2004),
purpose (to distribute drugs for profit), and participants. The
government established the existence of both an enterprise
and an agreement to engage in a pattern of racketeering
activity. Miller’s challenge to the RICO conspiracy
conviction will be denied.
VII. Fine Imposed on Eiland
Before sentencing Eiland, the district court vacated
Count 1, the narcotics conspiracy conviction, as a lesser
included offense of Count 3, the continuing criminal
enterprise conviction. Sentencing (Eiland) Tr. at 4, Nov. 28,
2007; Judgment as to Eiland 1, Feb. 7, 2008, D.D.C. 04-379,
ECF No. 1029. Nevertheless, the court ordered Eiland to pay
a fine of $7,000 on Count 1. Sentencing (Eiland) Tr. at 11,
Nov. 28, 2007; Judgment as to Eiland 7, Feb. 7, 2008, D.D.C.
04-379, ECF No. 1029. The government concedes it was
error for the court to impose that fine. We vacate the fine and
remand to the district court to consider whether it intended to
impose the fine on one of the remaining counts of conviction.
*****
We affirm Gerald Eiland’s convictions but vacate his fine
on Count 1. We remand for consideration of whether a fine
should be imposed on one of the remaining counts of
conviction. We vacate Frederick Miller’s conviction on
35
Count 3, continuing criminal enterprise, but affirm and
reinstate his conviction on Count 1, narcotics conspiracy.
Accordingly, we vacate Miller’s sentence and remand for
resentencing.
So ordered.