United States v. Henry Williams ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 11, 2016 Decided July 8, 2016
No. 13-3019
UNITED STATES OF AMERICA,
APPELLEE
v.
HENRY BRANDON WILLIAMS,
APPELLANT
Consolidated with 13-3035, 14-3012
Appeals from the United States District Court
for the District of Columbia
(No. 1:11-cr-00129-11)
(No. 1:11-cr-00129-2)
(No. 1:11-cr-00129-1)
Stephen C. Leckar, Edward C. Sussman, and Julian S.
Greenspun, all appointed by the court, argued the causes and
filed the joint briefs for appellants.
Nicholas P. Coleman, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Elizabeth
Trosman and Zia Faruqui, Assistant U.S. Attorneys.
2
Elizabeth H. Danello, Assistant U.S. Attorney, entered an
appearance.
Before: ROGERS, PILLARD and WILKINS, Circuit
Judges.
TABLE OF CONTENTS
Introduction ............................................................................. 2
I. Facts and Prior Proceedings............................................. 4
II. Wiretap Issues ................................................................ 13
III. Lay Opinion Testimony ................................................. 32
IV. Wired Plea Agreement ................................................... 50
V. Acquitted Conduct in Sentencing .................................. 53
Conclusion ............................................................................ 54
Introduction
PER CURIAM: Henry Williams, Gezo Edwards, and
William Bowman appeal their convictions by a jury of
participation in a cocaine distribution scheme between
January 2009 and April 2011. Following a multiyear
investigation conducted by the Federal Bureau of
Investigation (“FBI”) and local police, Appellants and eleven
other individuals were indicted on various federal drug
offenses. Williams, Edwards, and Bowman were indicted for
conspiracy to distribute and possess with intent to distribute
cocaine. Bowman and Edwards also were indicted for
multiple counts of using, carrying, and possessing a firearm
3
during a drug trafficking offense. And Bowman was indicted
for several counts of distribution of cocaine. Of the fourteen
individuals named in the original indictment, only Williams,
Edwards, and Bowman went to trial. The jury found all three
Appellants guilty of drug conspiracy, found Bowman guilty
of two firearms possession charges and three cocaine
distribution charges, and acquitted Edwards of the firearms
charges. Williams was sentenced to fifty-one months in
prison, Bowman to forty-five years in prison, and Edwards to
life imprisonment.
Appellants challenge their convictions on multiple
grounds:
(1) They contend that a series of wiretaps used by the
Government to uncover the criminal scheme at issue
here were attained improperly, in violation of both the
Fourth Amendment and relevant statutes, and that the
district court erred in refusing to suppress all
evidence gained from those wiretaps.
(2) Williams contends that the district court erred in
admitting portions of the lay opinion testimony
provided by FBI Special Agent John Bevington, who
was involved in the underlying investigation.
(3) Williams argues that the district court improperly
denied his motion for a judgment of acquittal,
because there was insufficient evidence to support his
conviction.
(4) Williams challenges the district court’s denial of
requests to instruct the jury on multiple conspiracies
and to give a limiting instruction concerning
Bowman’s and Edwards’s bad acts.
4
(5) Williams also contends that the district court erred in
denying his motion to sever his trial from that of
Bowman and Edwards.
(6) Bowman contends that the Government violated his
Fifth Amendment due process rights by improperly
“wiring” his plea agreement to a plea by Williams.
(7) Edwards contends that the district court violated his
Fifth and Sixth Amendment rights by increasing his
sentence based on his possession of a firearm even
though the jury had acquitted him of that conduct.
We affirm the judgments of conviction, with one
exception. We hold that the district court erred in admitting
portions of Agent Bevington’s lay opinion testimony and that
this error was not harmless. Therefore, we reverse Williams’s
conviction and remand his case to the district court for further
proceedings. We do not reach Williams’s other challenges to
his conviction other than to hold that the district court did not
err in denying his motion for a judgment of acquittal.
I. Facts and Prior Proceedings
A.
In late 2009, a joint task force of the FBI and the District
of Columbia Metropolitan Police Department began
investigating a suspected cocaine distribution operation based
in Washington, D.C. In an effort to uncover the nature, scope,
and membership of that operation, investigating agents
reviewed pen registers of telephone calls, arranged
undercover drug buys, obtained information from confidential
sources, and conducted extensive physical surveillance. After
concluding that traditional methods alone were insufficient to
investigate the operation, the Government sought, and
eventually obtained, judicial authorization for wiretaps on
5
three separate phone numbers associated with Bowman, who
the Government suspected was a ringleader of the drug
trafficking. See United States v. Edwards, 889 F. Supp. 2d 1,
5-6 (D.D.C. 2012).
The first of those wiretaps, which the Government
obtained on December 7, 2010, authorized the interception of
wire communications over Target Telephone 1 (“TT1”). See
id. at 5. Just a few weeks later, however, the Government
terminated that wiretap due to lack of activity on the TT1
phone line. See id. The Government did not seek
reauthorization of the TT1 wiretap. Instead, it applied for a
separate wiretap on Target Telephone 2 (“TT2”). See id. at 5-
6. Special Agent Timothy Pak submitted an affidavit in
support of the TT2 wiretap, averring that Bowman was
utilizing the TT2 phone line “to discuss and facilitate drug
trafficking in the Washington, D.C. area.” Gov’t’s Jan. 13,
2011, TT2 Wiretap Affidavit (“Jan. 13 TT2 Aff.”) ¶ 7. Agent
Pak’s affidavit asserted that the TT2 wiretap was necessary
because the Government’s “[n]ormal investigative
procedures,” id. ¶ 35 – including the use of confidential
sources and undercover officers, physical surveillance, trash
covers, and pen registers – had failed to reveal the full scope
and nature of the drug trafficking operation. See id. ¶¶ 35-48.
On January 13, 2011, the district court authorized the TT2
wiretap for an initial thirty days. See Edwards, 889 F. Supp.
2d at 6.
At the Government’s requests, the district court granted
three extensions of the TT2 wiretap. See id. The Government
sought the first extension on February 14, 2011, relying on an
updated affidavit from Agent Pak. That affidavit emphasized
that reauthorization of the TT2 wiretap was necessary
because, even after using the TT2 wiretap for a month
alongside traditional investigative tools, agents had yet to
6
uncover the full scope and membership of the drug trafficking
operation. See Gov’t’s Feb. 14, 2011, TT2 Wiretap Affidavit
(“Feb. 14 TT2 Aff.”) ¶¶ 34-55. The district court agreed and
promptly reauthorized the TT2 wiretap for an additional thirty
days. See Edwards, 889 F. Supp. 2d at 6.
On March 11, 2011, the Government requested another
extension of the TT2 wiretap. Agent Pak’s March 11, 2011,
affidavit did not name Edwards – another suspected leader of
the drug trafficking operation – as a potential target of the
TT2 wiretap reauthorization. In that affidavit, Agent Pak
reiterated his belief that the TT2 wiretap remained necessary
to fill evidentiary gaps left by normal investigative
procedures. See Gov’t’s March 11, 2011, TT2 Wiretap
Application (“Mar. 11 TT2 Aff.”) ¶¶ 25-41. The district court
obliged and, on March 11, 2011, reauthorized the TT2 wiretap
for another thirty-day period. See Edwards, 889 F. Supp. 2d
at 6.
The Government then sought and obtained a third and
final thirty-day reauthorization of the TT2 wiretap on April 8,
2011, again based on Agent Pak’s view that the TT2 wiretap
was necessary to investigate the full scope of the drug
trafficking operation. See id.; Gov’t’s April 8, 2011, TT2
Wiretap Affidavit (“Apr. 8 TT2 Aff.”) ¶¶ 31-50.
On March 21, 2011, while the TT2 wiretap was still
operational on its second extension, the Government sought
an order authorizing the interception of wire communications
to and from Target Telephone 3 (“TT3”), another phone
number associated with Bowman. See Edwards, 889 F. Supp.
2d at 6. As in his other affidavits, Agent Pak attested that the
TT3 wiretap was necessary to determine the full nature and
scope of the conspiracy, which called for further investigation
notwithstanding the TT2 wiretap. See Gov’t’s Mar. 21, 2011,
7
TT3 Wiretap Affidavit (“Mar. 21 TT3 Aff.”) ¶¶ 27-43.
Notably, the Government’s TT3 wiretap application was the
first to name Edwards as a possible target of the wiretap. See
id. ¶ 10(c). The district court authorized the TT3 wiretap,
and, on April 15, 2011, reauthorized it for an additional thirty
days. See Edwards, 889 F. Supp. 2d at 6.
Between January and April 2011, investigating agents
employed the TT2 and TT3 wiretaps to intercept numerous
telephone calls between Bowman, Edwards, Williams, and
several other members of the suspected drug trafficking
operation. Toward the end of the investigation, agents
executed search warrants on a storage unit and various
residences connected to Bowman and Edwards and seized
cocaine, drug paraphernalia, several firearms, and
ammunition.
B.
The Government arrested Williams, Edwards, and
Bowman along with several other individuals and indicted
them for various drug-related offenses. The operative
superseding indictment charged Williams, Edwards, Bowman,
and several other men with conspiracy to distribute and
possess with intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. § 846. The superseding
indictment also charged Bowman and Edwards with two
counts of using, carrying, and possessing a firearm during a
drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1).1 It charged Bowman with an additional count of
firearm possession and three counts of unlawful distribution
1
Those two firearm possession counts were later merged into one
before the case was submitted to the jury.
8
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C).2
Appellants filed several pretrial motions during the early
stages of the case. Williams moved to sever his trial from that
of his co-defendants. Williams insisted that trying him
alongside co-defendants facing much more serious charges
would risk prejudicial spillover and allow the prosecution to
benefit from guilt by association. The district court denied
that motion, concluding that Williams failed to show a serious
risk that a joint trial would prevent the jury from making a
reliable judgment about his guilt or innocence. Around the
same time, Bowman and Edwards moved to suppress
evidence obtained from the TT2 and TT3 wiretaps on the
ground that, in obtaining judicial approval of the wiretaps, the
Government failed to satisfy the requirements of the Fourth
Amendment and Title III of the Omnibus Crime Control and
Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2510 et seq.
See Edwards, 889 F. Supp. 2d at 4-5.3 The district court
denied those suppression motions. Id. at 18. It held that the
TT2 and TT3 wiretaps, and all subsequent reauthorizations,
satisfied Title III’s “necessity” requirement because
traditional investigative techniques were insufficient to reveal
the full scope of the suspected drug trafficking operation. Id.
at 8-13. The district court further concluded that Appellants
were not entitled to a hearing under Franks v. Delaware, 438
U.S. 154 (1978), because they failed to make a substantial
showing that the purported omissions in the Government’s
2
The superseding indictment also charged Bowman with two
counts of unlawful distribution of five grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii),
but the Government later dismissed those counts.
3
Williams filed a notice to adopt those motions.
9
wiretap applications were material. Edwards, 889 F. Supp. 2d
at 14-18. Edwards filed more motions, some counseled and
some pro se, reiterating his earlier claims and also arguing
that agents violated Title III’s “naming” and “prior
applications” provisions. The district court denied each of
those motions in a series of written memoranda and orders.
See, e.g., Edwards, 889 F. Supp. 2d at 18-23 (D.D.C. Sept.
16, 2012) (denying pre-trial motion for reconsideration); id. at
23-29 (D.D.C. Oct. 23, 2012) (same); United States v.
Edwards, 904 F. Supp. 2d 7, 9-11 (D.D.C. 2012) (denying pro
se motion for reconsideration); United States v. Edwards, 943
F. Supp. 2d 125, 127-29 (D.D.C. 2013) (denying pro se
motion for new trial and other post-trial motions); United
States v. Edwards, 994 F. Supp. 2d 1, 4-7 (D.D.C. 2013)
(denying pro se post-trial motions); United States v. Edwards,
994 F. Supp. 2d 7, 9-10 (D.D.C. 2014) (same).
In the months leading up to trial, Bowman entered into
plea negotiations. The Government offered Bowman a
“wired” plea deal. Under the initial version of that deal,
Bowman could plead guilty, and the Government would
recommend a prison sentence capped at twenty-three years,
but only if Williams also pleaded guilty to the drug
conspiracy charge. If Williams pleaded guilty, he, in turn,
would face no mandatory minimum and likely would face a
guidelines sentencing range of twenty-seven to thirty-three
months imprisonment. Bowman’s counsel told the court that
Bowman was willing to accept his half of the deal but “would
hope that [the Government] would unwire it” from the
condition that Williams also plead guilty. Status Hr’g Tr. 75
(Sept. 7, 2012). A month later, during jury selection, the
Government offered a revised plea agreement to Bowman.
Under that revised agreement, Bowman could plead guilty to
a sentence of twenty-five years imprisonment, contingent
upon Williams’s acceptance of a plea offer of a thirty to
10
thirty-seven month prison sentence. On the eve of trial,
Bowman’s counsel notified the district court that his client did
“not wish to engage in any discussions with the Government
and does not wish to plead guilty based upon the offer that has
been made to him.” Trial Tr. 7 (Oct. 22, 2012). Williams, for
his part, stated on the record that he also would not accept the
Government’s plea offer.
C.
All three Appellants proceeded to trial. During its case-
in-chief, the Government played audio recordings of phone
calls obtained from the wiretaps, showed numerous
surveillance videos, and presented testimony from
investigating agents, narcotics experts, and cooperating
witnesses. The Government offered evidence to show that
Edwards and Bowman were the leaders of a cocaine-
trafficking network in the Washington, D.C., area. According
to one of the prosecution’s cooperating witnesses, Edwards
and Bowman repeatedly acquired large quantities of cocaine
from California and used cross-country shipping pods to
transport it to the Washington, D.C., area. The evidence
suggested that they stored the cocaine in various locations,
including an apartment in Capitol Heights, Maryland, and
storage facilities in Hyattsville, Maryland. The Government
adduced testimony that Edwards processed, weighed, and
repackaged the cocaine into smaller blocks for resale to mid-
level drug dealers. Bowman, in turn, distributed the
repackaged cocaine to those mid-level dealers, usually on
consignment. Another cooperating witness testified that
Bowman typically would give the drugs to him “on
consignment,” and that he later would pay Bowman back with
the proceeds earned from selling the drugs to individual
customers. Trial Tr. 9, 21 (Nov. 5, 2012, p.m. session). The
prosecution’s evidence, including wiretap recordings and
surveillance videos, also showed that Williams interacted with
11
the other defendants during the early half of 2011. Williams
repeatedly called Bowman between January and March 2011,
and met with Bowman on several occasions in mid-March
2011, including on March 12, March 15, and March 23,
shortly after Bowman and Edwards, on or before March 10,
had received a large shipment of cocaine.
The Government also presented the testimony of FBI
Special Agent John Bevington, one of the lead investigating
officers. On the second day of trial, the district court granted
the Government’s motion to qualify Agent Bevington as an
expert witness “in the interpretation of words and phrases
used by drug traffickers in this particular case.” Trial Tr. 67
(Oct. 24, 2012, a.m. session). In his capacity as an expert on
narcotics terminology, Agent Bevington translated many
“coded” words that appeared in conversations between
Bowman and other members of the alleged drug conspiracy.
Over defense counsel’s objections, the district court also
permitted Agent Bevington to provide lay opinion testimony
interpreting recorded calls between Bowman, Williams, and
other co-conspirators.
D.
At the close of all the evidence, Williams moved for a
judgment of acquittal, chiefly on the ground that the evidence
was insufficient to prove his participation in the charged drug
conspiracy. Drawing all inferences in favor of the
prosecution, the district court orally denied the motion and
found that a reasonable jury could find that Williams
participated in the alleged conspiracy based on the nature and
frequency of his contacts with Bowman. See Trial Tr. 96-97
(Nov. 13, 2012, p.m. session). During the final days of the
trial, Edwards and Williams asked the district court to give a
“multiple conspiracies instruction” to the jury, arguing that
the prosecution’s evidence, at most, established their
12
involvement in a different drug conspiracy from the one
alleged in the superseding indictment. The district court
rejected that request and declined to give the proposed
instruction. See generally Final Jury Instructions, United
States v. Edwards, No. 11-cr-129 (D.D.C.), ECF No. 591.
After resolving other pending trial motions and hearing the
parties’ closing statements, the district court instructed the
jury and then submitted the case to the jury for deliberation.
On November 16, 2012, the jury began its deliberations
and delivered verdicts four days later. The jury found
Bowman, Edwards, and Williams guilty of the drug
conspiracy charge. On that charge, the jury held Bowman and
Edwards responsible for five kilograms or more of cocaine
and held Williams responsible for an amount less than 500
grams. The jury also found Bowman guilty of two firearm
possession charges and all three remaining cocaine
distribution charges. The jury acquitted Edwards on the
firearm possession charge.
During Edwards’s sentencing hearing, the district court
granted the Government’s request for a two-level increase in
Edwards’s guidelines calculation for possession of a
dangerous weapon, pursuant to U.S. Sentencing Guideline
§ 2D1.1(b)(1). Even though the jury had acquitted him on the
firearm possession count, the district court found by a
preponderance of the evidence that Edwards possessed a
firearm in furtherance of the drug trafficking conspiracy. The
district court sentenced Edwards to life imprisonment,
Williams to fifty-one months in prison for the conspiracy
charge, and Bowman to an aggregate prison term of forty-five
years in prison for his offenses. Appellants timely appealed.
13
II. Wiretap Issues
Appellants’ first challenge to their convictions rests on
their contention that many of the Government’s wiretap
applications were flawed, requiring the suppression of all
evidence gained from those wiretaps. They rest that challenge
on four grounds. First, they argue that the district court erred
by refusing to hold a hearing, pursuant to Franks v. Delaware,
438 U.S. 154, to determine whether the Government omitted
material information from its wiretap applications. Second,
they claim that by omitting that information, the Government
violated the necessity requirement of Title III. Third, they
argue that the information the Government did disclose was
insufficient to establish the necessity of the wiretaps. And
fourth, Edwards asserts that the Government unlawfully failed
to name him in its March 11, 2011, wiretap affidavit. After
setting forth the governing legal principles, we address each
of these contentions in turn.
A.
A defendant may seek to suppress the evidence gathered
as a result of wiretap surveillance under two different legal
theories: she can argue that the wiretap violated her rights
under the Fourth Amendment, or that the wiretap failed to
comply with the requirements of Title III. Appellants argue
both here.
1. Appellants’ Fourth Amendment claim is based on the
Supreme Court’s decision in Franks v. Delaware, 438 U.S.
154. Franks involved a defendant’s challenge to a warrant
affidavit that, according to the defendant, contained false
statements. Id. at 157-58. The Court held that “where the
defendant makes a substantial preliminary showing that a
false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the
14
warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defendant’s
request.” Id. at 155-56. This court has thereafter referred to
such hearings as “Franks hearings.” See, e.g., United States
v. Maynard, 615 F.3d 544, 550-51 (D.C. Cir. 2010); United
States v. Becton, 601 F.3d 588, 594 (D.C. Cir. 2010). To
obtain a Franks hearing, a movant “must show that (1) the
affidavit contained false statements; (2) the statements were
material to the issue of probable cause; and (3) the false
statements were made knowingly and intentionally, or with
reckless disregard for the truth.” Becton, 601 F.3d at 594
(internal quotation marks omitted).
This court has extended Franks to apply not only where
the Government is alleged to have made false statements but
also where a defendant alleges that the Government
“knowingly and intentionally (or with reckless disregard)
omitted a fact that would have defeated probable cause.”
United States v. Glover, 681 F.3d 411, 419 (D.C. Cir. 2012);
accord United States v. Spencer, 530 F.3d 1003, 1007 (D.C.
Cir. 2008) (stating that “suppression also remains ‘an
appropriate remedy if the magistrate or judge in issuing a
warrant was misled by information in an affidavit,’” and
noting that “[t]his latter exception also has been held to apply
under certain circumstances to material omissions” (quoting
United States v. Leon, 468 U.S. 897, 923 (1984))). Although
Franks involved a probable cause determination concerning a
warrant affidavit, this court has applied Franks in the wiretap
context as well. See, e.g., Maynard, 615 F.3d at 550-51;
Becton, 601 F.3d at 597-98.
Yet not just any omission is enough. This court’s
precedent is clear that to implicate the Fourth Amendment,
and to require a Franks hearing, the omission alleged must be
15
such that, had the omitted information been provided to the
authorizing court, it would have altered the court’s conclusion
that the wiretap was necessary. See, e.g., Becton, 601 F.3d at
597 (finding “the Government’s failure to disclose certain
information bearing on the credibility of two confidential
sources” unproblematic where the inclusion of that additional
information “was [not] material” and “would not have
defeat[ed] probable cause” (internal quotation marks
omitted)). If a defendant makes such a showing, she would
then be entitled to a hearing before the district court to
determine whether suppression of that wiretap evidence is
required under the Fourth Amendment. See Franks, 438 U.S.
at 171-72. The court has not resolved whether a district
court’s decision not to hold a Franks hearing is reviewed
under the clearly erroneous or de novo standard of review.
See Becton, 601 F.3d at 594. It is unnecessary to do so here
because, under either standard of review, we would find no
error by the district court.
2. Appellants also contest the wiretaps at issue here by
arguing that the Government failed to comply with the
provisions of Title III in seeking the wiretap.
To approve a wiretap, a judge must determine that the
wiretap is supported by both probable cause and necessity. 18
U.S.C. § 2518(3); Glover, 681 F.3d at 420. Appellants do not
challenge the Government’s probable cause showing,4 but
4
To demonstrate probable cause, the Government must show that
there is probable cause for belief that: (1) “an individual is
committing, has committed, or is about to commit a particular
offense”; (2) “particular communications concerning that offense
will be obtained through such interception”; and (3) “the facilities
from which . . . the wire . . . communications are to be intercepted
16
instead argue that the affidavits the Government submitted to
support its wiretap applications did not demonstrate that each
wiretap was necessary.
To demonstrate that a wiretap is necessary, Title III
requires the Government to provide “a full and complete
statement as to whether or not other investigative procedures
have been tried and have failed or why they reasonably appear
to be unlikely to succeed if tried or to be too dangerous.” 18
U.S.C. § 2518(1)(c). The authorizing court must then
determine 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” on the basis of this
statement. Id. § 2518(3)(c). This necessity requirement is
satisfied when “traditional investigative techniques have
proved inadequate to reveal the operation’s full nature and
scope.” Becton, 601 F.3d at 596 (internal quotation marks
omitted). In assessing the necessity of a wiretap application,
courts must “giv[e] close scrutiny to applications challenged
for noncompliance and . . . reject[] generalized and
conclusory statements that other investigative procedures
would prove unsuccessful.” United States v. Johnson, 696
F.2d 115, 123 (D.C. Cir. 1982) (quoting United States v.
Williams, 580 F.2d 578, 588 (D.C. Cir. 1978)). “Nonetheless,
the statutory command was not designed to foreclose
electronic surveillance until every other imaginable method of
investigation has been unsuccessfully attempted.” Williams,
580 F.2d at 588 (internal quotation marks omitted). It is
sufficient for the Government to show that “other techniques
are impractical under the circumstances and that it would be
are being used . . . in connection with the commission of such
offense.” 18 U.S.C. § 2518(3)(a)-(b), (d).
17
unreasonable to require pursuit of those avenues of
investigation.” Id. (internal quotation marks omitted).
An “aggrieved person” may move to suppress the
contents of any intercepted communication and any evidence
derived therefrom where “the communication was unlawfully
intercepted.” 18 U.S.C. § 2518(10)(a)(i). This provision
“was not intended to reach every failure to follow statutory
procedures,” but applies where there is a “failure to satisfy
any of those statutory requirements that directly and
substantially implement the congressional intention to limit
the use of intercept procedures.” United States v. Chavez, 416
U.S. 562, 574-75 (1974) (quoting United States v. Giordano,
416 U.S. 505, 527 (1974)). This includes “the statutorily
imposed preconditions to judicial authorization” of a wiretap,
such as necessity. United States v. Donovan, 429 U.S. 413,
436 (1977) (citing 18 U.S.C. § 2518(3)(c)); see also United
States v. Carter, 449 F.3d 1287, 1292-93 (D.C. Cir. 2006).
An affidavit offered in support of a wiretap application
enjoys a “presumption of validity.” Maynard, 615 F.3d at
550 (quoting Franks, 438 U.S. at 171) (concerning affidavits
in support of search warrants). The court reviews an
authorizing court’s necessity determination for abuse of
discretion, but does not give a second layer of deference to a
district court’s assessment of the authorizing court’s necessity
determination. See Glover, 681 F.3d at 419-20. In assessing
a district court’s denial of a wiretap suppression motion, the
court reviews the district court’s legal conclusions de novo
and its factual findings for clear error. United States v.
Eiland, 738 F.3d 338, 347 (D.C. Cir. 2013).
B.
We turn now to Appellants’ arguments seeking to
suppress the evidence derived from the wiretaps.
18
1. Appellants first argue that the district court erred by
refusing to hold a Franks hearing concerning certain
omissions from the Government’s wiretap applications.
Because the omissions were not material, we reject the
argument.
Appellants allege, and the Government does not dispute,
that the Government’s wiretap affidavits did not disclose two
“investigative procedures,” 18 U.S.C. § 2518(1)(c), related to
its investigation of Bowman. First, the Government’s initial
three applications seeking to wiretap Bowman’s TT2 phone
failed to disclose the existence of a pen register5 on TT3,
another of Bowman’s phones. See generally Jan. 13 TT2
Aff.; Feb. 14 TT2 Aff.; Mar. 11 TT2 Aff. The Government
had been operating the TT3 pen register for nearly a year
when it first sought to wiretap Bowman’s TT2 phone, and by
March 2011, when it submitted its third application for a
wiretap on TT2, the Government had recorded over two
thousand activations on TT3. See Mar. 21 TT3 Aff. ¶ 23.
Second, in the March 11 Affidavit, the Government did
not disclose the existence of an additional confidential source,
CS-4, who had known Bowman and Edwards for over ten
years, and who, in late February 2011, informed the
Government that he or she knew that the two were “working
in concert to traffic[] in narcotics.” Apr. 8 TT2 Aff. ¶ 35.
5
“A pen register is a mechanical device that records the numbers
dialed on a telephone by monitoring the electrical impulses caused
when the dial on the telephone is released. It does not overhear oral
communications and does not indicate whether calls are actually
completed.” United States v. N.Y. Tel. Co., 434 U.S. 159, 161 n.1
(1977).
19
Neither of these omissions, however, would have
“defeat[ed] probable cause,” and therefore, the district court
was not required to hold a Franks hearing concerning those
omissions. Becton, 601 F.3d at 597 (quoting Spencer, 530
F.3d at 1007). While pen registers cannot “convey to the
government the substance of [Bowman’s] calls,” Eiland, 738
F.3d at 349, they can nonetheless reveal relevant and
important information. And sometimes they uncover data that
can make a wiretap unnecessary.6 Here, however, Appellants
have not shown that pen register data rendered the wiretaps
unnecessary. See Franks, 438 U.S. at 171-72.
The same is true of the Government’s use of CS-4. CS-4
provided some information to the Government concerning
Bowman and Edwards’s relationship and participation in drug
trafficking. But that information was not sufficient to
6
See, e.g., Smith v. Maryland, 442 U.S. 735, 737 (1979) (police
obtained a search warrant through use of a pen register, where pen
register demonstrated petitioner was responsible for robbing victim
in question after victim began receiving threatening phone calls
from robber subsequent to robbery); United States v. Geraldo, 271
F.3d 1112, 1115 (D.C. Cir. 2001) (describing pen register data as
part of the evidence submitted to a magistrate deemed sufficient to
justify the issuance of a search warrant, without resort to a wiretap);
United States v. Clay, 34 F.3d 1070 (8th Cir. 1994) (unpublished)
(pen register data led to arrest of a drug trafficking co-conspirator
where pen register data linked one co-conspirator to the other);
United States v. Thornton, 746 F.2d 39, 41-42 (D.C. Cir. 1984)
(explaining that pen register data, among other evidence, allowed
law enforcement to secure – without the use of a wiretap – several
search warrants concerning an alleged gambling enterprise based on
the fact that the pen registers showed that numerous calls were
placed to the location in question “within one hour of the prime
gambling period”); United States v. Louderman, 576 F.2d 1383,
1386 (9th Cir. 1978) (pen register data used to prove wire fraud).
20
establish either the source of Bowman’s drugs, or the
hierarchy of his organization. Nor was continued reliance on
CS-4 reasonably likely to reveal that information, which the
Government needed to uncover fully and prosecute
effectively the conspiracy at issue here. Had the Government
disclosed the existence of CS-4, it would not have altered the
authorizing court’s necessity determination, and therefore, the
Government’s omission of that information did not require a
Franks hearing.
2. Appellants next argue that the Government violated
Title III’s necessity requirement, 18 U.S.C. § 2518(1)(c), by
failing to include the omitted information regarding the pen
register on TT3 and confidential source CS-4. We reject
Appellants’ contention that the fruits of the resulting wiretaps
must be suppressed. Although we agree that the Government
could have, and should have, provided the omitted
information discussed above in each relevant wiretap
application, the Government provided the bare minimum
necessary to comply with Title III.
The Government has offered no reason why it could not
have provided the authorizing court with the omitted
information concerning the pen register on TT3 and the
existence of CS-4, consistent with the statutory requirement
of a “full and complete statement.” Id. Both omissions were
relevant to the necessity determination because both shed
further light on the breadth of the Government’s investigation
and the alternative means the Government had to investigate
the conspiracy at issue, short of the invasive option of wiretap
surveillance.
Nonetheless, the Government’s failure to include this
information in its wiretap applications did not violate the
necessity requirement of Title III. The Government informed
21
the authorizing court of the existence of the pen register on
TT2, see, e.g., Jan. 13 TT2 Aff. ¶¶ 30-34, and further
explained why, in this particular case, pen register data was
insufficient to reveal the “full nature and scope” of the
conspiracy. Becton, 601 F.3d at 597; see also id. (finding that
“[t]he Government’s omission of information that a previous
search had yielded incriminating information did not make its
affidavit infirm”); Jan. 13 TT2 Aff. ¶¶ 47-48 (asserting that
while pen registers are useful “in establishing relationships
and patterns of operations, . . . they provide little direct
evidence as to the significance of the telephone calls”). The
activations recorded by the pen register on TT3 were no more
illuminating. Consequently, the inclusion of information
concerning the pen register on TT3 could not have altered the
authorizing court’s necessity determination.
The same is true of the Government’s use of CS-4.
Appellants have not shown that, had the authorizing court
known that CS-4 was aiding the Government in its
investigation, the court would have found necessity lacking
because the available investigative techniques were sufficient
to establish the source of Bowman’s drugs or the hierarchy of
his organization. See supra Part II.B.1. This information
could not have altered the authorizing court’s necessity
determination, and thus the Government was not required to
include it in its wiretap application. To this extent, the
Government’s omission “was not material, because it did not
undermine the government’s ability to prove the need for the
. . . wiretap.” Becton, 601 F.3d at 597 (internal quotation
marks omitted).
By omitting the information concerning the pen register
on TT3 and the Government’s use of CS-4, the Government
did not provide the authorizing court with as complete a
picture of its investigation as it could have, making the
22
authorizing court’s necessity determination potentially less
well-informed. Although we conclude that the Government’s
omissions were not material to Title III’s necessity
requirement, the Government could have, and should have,
included this information in its wiretap affidavits. As the
Supreme Court stated in United States v. Donovan, the “strict
adherence by the Government to the provisions of Title III
would . . . be more in keeping with the responsibilities
Congress has imposed upon it when authority to engage in
wiretapping or electronic surveillance is sought.” 429 U.S. at
440 (quoting Chavez, 416 U.S. at 580). Absent some
persuasive explanation for an omission, we anticipate that the
Government will provide such information to authorizing
courts in the future.
3. Appellants next argue that the information the
Government did disclose in its wiretap application was
insufficient to demonstrate the wiretap’s necessity when
considered in combination with the omission of the pen
register on TT3 and CS-4. We disagree. We have determined
already that the Government’s omission of information
concerning the pen register on TT3 and the existence of CS-4
did not negate the wiretap’s necessity. Appellants fare no
better when those omissions are viewed in combination with
Appellants’ arguments concerning the information that the
Government did include in its wiretap application.
Focusing first on the January 13 Affidavit, Appellants
argue that the wiretap was unnecessary because the
Government’s surveillance of Bowman was bearing fruit and
likely would continue to do so, given that “Bowman was
hardly circumspect” when it came to carrying out his drug
operations. Appellants’ Br. 27-29. In particular, Appellants
highlight several instances when the Government was able to
observe Bowman selling cocaine to undercover operatives
23
and others. See Jan. 13 TT2 Aff. ¶¶ 19-20 (describing two
controlled drug purchases a confidential source made from
Bowman); Trial Tr. 83-84 (Oct. 25, 2012, p.m. session)
(testimony of Government agent recounting his surveillance
of Bowman during a confidential informant’s purchase of
drugs from Bowman). Appellants’ arguments are unavailing.
The Government has adequately demonstrated that such
surveillance and undercover operations were unlikely to
provide it with the information needed to uncover the “full
nature and scope” of the suspected crime at issue, United
States v. Sobamowo, 892 F.2d 90, 93 (D.C. Cir. 1989)
(quoting United States v. Brown, 823 F.2d 591, 598 (D.C. Cir.
1987)), namely, the source of Bowman’s cocaine, and the
hierarchy of Bowman’s organization. In Becton, the court
similarly found necessity where “normal investigative
procedures ha[d] been probative in proving that an ongoing
illegal narcotics business [wa]s operating” because “the FBI
had been unable to determine the identities of other co-
conspirators who supplied and transported drugs into D.C.
and who assisted in local redistribution using these methods.”
601 F.3d at 596 (internal quotation marks omitted).
Appellants fault the Government for not “squarely
address[ing]” “how well-placed the informants were, or how
close they were to Bowman,” Appellants’ Reply Br. 12, but
the Government persuasively suggests that Bowman was
unlikely to give his customers information about where he
kept his drugs, or who was supplying them to him. Had he
done the former, he would have risked his drugs being stolen.
Had he done the latter, he would have risked having his
customers go straight to his drug source. As the district court
noted, “the fact that Bowman was willing to sell narcotics to
the undercover officer and confidential sources he barely
knew does not negate [the Government’s] observation that
Bowman kept certain information, such as the location of his
24
stash house, from his customers.” Edwards, 889 F. Supp. 2d
at 9; see also Eiland, 738 F.3d at 349 (explaining that the
placement of informants does not demonstrate lack of
necessity because those informants were not close enough to
the core members of the conspiracy to “have access to the
most closely held secrets”); United States v. Fernandez, No.
12-cr-445, 2013 WL 503966, at *2 (S.D.N.Y. Feb. 7, 2013)
(noting that individuals involved in a drug trade “were
unlikely to reveal to an informant the source of their drugs or
the manner in which the narcotics were transported”).
Nor was the Government required in these circumstances
to expect that physical surveillance would provide such
information. The Government notes that there was only so
much surveilling of Bowman it could do before Bowman
might catch on to the surveillance. See Jan. 13 TT2 Aff. ¶ 40
(asserting that “prolonged or regular surveillance of the
movements of the subjects would most likely be noticed,
thereby causing them to become more cautious in their illegal
activities, or to change the manner in which they conduct their
illegal activity, thus further stalling law enforcement efforts”).
And while following Bowman’s movements might have given
the Government some idea of where Bowman kept at least
some of his drugs, the Government’s submissions to the
authorizing court established that continued surveillance
could not be expected to provide it the breadth of
understanding concerning the location of those drugs, nor the
certainty that wiretap surveillance in these circumstances
would likely provide. See United States v. Scurry, 821 F.3d 1,
17-18 (D.C. Cir. 2016) (finding the Government’s use of
physical surveillance insufficient to defeat necessity where
the defendant “took evasive maneuvers to avoid physical
surveillance, [and] consummated drug sales indoors or inside
cars,” and rejecting the defendant’s argument that “the
government could have searched [the defendant’s] known
25
stash house or prosecuted [the defendant] on the evidence of
the controlled narcotics transactions alone”).
Appellants also claim that the disclosed pen register on
TT2 provided the Government with sufficient information to
preclude the need for a wiretap. But as discussed above, the
pen registers at issue here did not reveal, nor was their
continued use reasonably likely to reveal, sufficient
information to render the wiretaps unnecessary.
Accordingly, the authorizing court did not abuse its
discretion by finding the wiretaps sought by the Government
here necessary. To the extent that Appellants contest the
Government’s February 11 Affidavit on the same necessity
grounds as the January 13 Affidavit, we affirm the necessity
determination as to the February 11 Affidavit for the same
reasons.
4. Appellants’ challenge to the Government’s March 11
Affidavit focuses on the Government’s failure to name or
discuss Edwards anywhere in the Affidavit. They assert that
this omission violated Title III’s “naming” and necessity
requirements, and thus request the suppression of the fruits of
the wiretap approved based on that affidavit.
a. Pursuant to 18 U.S.C. § 2518(1)(b)(iv), the
Government is required to include information concerning
“the identity of the person, if known, committing the offense
and whose communications are to be intercepted.” The
Supreme Court has interpreted this provision to require the
identification of an individual if the Government (1) “has
probable cause to believe that the individual is engaged in the
criminal activity under investigation” and (2) “expects to
intercept the individual’s conversations over the target
telephone.” Donovan, 429 U.S. at 428. This naming
requirement applies to individuals placing calls to the target
26
telephone as well as to individuals making calls from the
target telephone. See id. at 424-28. The Supreme Court in
Donovan held that a violation of § 2518(1)(b)(iv) did not
constitute grounds for suppression under § 2518(10)(a)(i),
where the failure to name an individual in the wiretap
application was not made “knowingly . . . for the purpose of
keeping relevant information from the District Court.” 429
U.S. at 436 n.23; see also id. at 439.
Edwards argues that, pursuant to § 2518(1)(b)(iv), the
Government was required to name him in its March 11
Affidavit because the Government at that point had probable
cause to believe both that he was involved in the cocaine
distribution conspiracy at issue and that his communications
would be intercepted by the wiretap. The Government does
not argue that it lacked probable cause that Edwards was
involved in the conspiracy, but instead argues that it had no
reason to expect that the March 11 wiretap would intercept
Edwards over Bowman’s TT2 phone specifically (as opposed
to over Bowman’s TT3 phone).7
7
According to the 2014 edition of the United States Attorneys’
Manual, the Government’s current policy goes beyond the
minimum required by 18 U.S.C. § 2518 by mandating the naming
in all wiretap affidavits of each person “whose involvement in the
alleged offenses is indicated, even if not all those persons are
expected to be intercepted over the target facility or at the target
location.” U.S. Att’ys’ Manual, Crim. Resources Manual, 28
Electronic Surveillance – Title III Applications ¶ E (2014 ed.),
https://www.justice.gov/usam/criminal-resource-manual-28-
electronic-surveillance-title-iii-applications (last visited July 6,
2016). Appellants argue that the Government’s policy therefore
required it to name Edwards in its March 11 Affidavit. However,
such a policy is not judicially enforceable in a criminal case, see
United States v. Kember, 648 F.2d 1354, 1370 (D.C. Cir. 1980), nor
27
By March 2011, the Government had captured pen
register data showing that Edwards and Bowman had been in
constant phone contact for at least a year. See Mar. 21 TT3
Aff. ¶ 23 (displaying a chart cataloging 939 phone activations
between Edwards and Bowman since January 2010).
However, this contact occurred strictly over TT3. Id. At no
point during the three months the Government had been
monitoring TT2 had Bowman received a single call from
Edwards on that phone. As the district court noted, “[d]espite
numerous opportunities to do so, the Defendant has never
contested the Government’s assertion that the pen register on
TT2 did not show any calls between Bowman and telephone
numbers known or believed to be associated with Edwards.”
Edwards, 889 F. Supp. 2d at 21 (internal quotation marks
omitted). Thus, it was reasonable in this context for the
Government to have expected any phone communications that
were going to occur between Bowman and Edwards would
occur over TT3, not TT2.
To get around the Government’s reasonable inferences
from Edwards’s past communication pattern, Edwards
contends that even if he was not likely to call Bowman on
TT2, the Government should have expected to pick up
Edwards’s voice in the background of the TT2 wiretap
because the Government had obtained some evidence
suggesting that Bowman and Edwards had met on at least two
occasions. Although the Government acknowledges that GPS
data showed Bowman near an address associated with
Edwards on two occasions, see Gov’t’s Opp’n Br. at 4, United
States v. Edwards, No. 11-cr-129 (D.D.C. Oct. 20, 2012),
is it relevant to whether the Government had probable cause to
believe that Edwards’s conversations would be captured by TT2.
28
ECF No. 517, Edwards’s argument is nonetheless
unpersuasive. First, it is not clear that Title III’s naming
provision applies to the identity of individuals whose
background conversations might be expected to be overheard
during intercepted wire communications. We have found no
authority on point, nor have the parties provided any.
According to Appellants, “[t]he trial judge correctly
concluded that the naming requirement extends to persons
who might be overheard in the background of an intercept,”
Appellants’ Br. 59 & n.173 (citing Edwards, 889 F. Supp. 2d
at 25-26), but this is incorrect. Although the district court
stated that “the plain language” of 18 U.S.C. § 2518(b)
“would appear to encompass all communications recorded as
a result of the wiretap, regardless of . . . whether the
conversation took place over, or merely in the vicinity of, the
target telephone,” the court also noted that it had been unable
to locate any legal authority on the point, nor had the parties
offered any, and it went on to state that “the Court need not
resolve the scope of the Government’s burden in this respect
because the Defendant failed to show that he should have
been named as a target even if the Donovan requirements
applied to background[] conversations.” Edwards, 889 F.
Supp. 2d at 25-26.
Assuming, without deciding, that such overheard
conversations do implicate Title III’s naming requirement,
Appellants fare no better. Even if Bowman and Edwards
were in the same room, and Edwards was having a
conversation with a third individual at the same time that
Bowman was talking on TT2 to a fourth individual, it is
unlikely that Bowman would stop speaking, and Edwards
would start speaking, at just the right time, such that the TT2
wiretap would clearly pick up Edwards’s conversation and
enable the Government reliably to identify his voice. When
viewed in concert with the fact that the Government had
29
evidence of only a few instances in which Bowman and
Edwards may have met, it was not unreasonable for the
Government to expect that it would not intercept Edwards’s
voice in the background over the TT2 wiretap.
This conclusion is supported by the fact that, during the
period from January through March 2011, the Government
never intercepted Edwards’s voice in the background over
TT2, even during those times when the Government
suspected Bowman and Edwards met. See Edwards, 889 F.
Supp. 2d at 28. Thus, just as the Government lacked grounds
to expect that Edwards would call Bowman on TT2, since he
had not done so during the two and a half months it had
intercepted calls placed from or to TT2, the Government had
no reason on this record to expect that Edwards’s voice would
be captured in the background of a TT2 call.
Edwards also points out that on March 8-9, 2011, the
Government ran an “ELSUR” electronic surveillance database
check to determine whether Edwards had been the subject of
prior intercept orders. The ELSUR check was disclosed in
the wiretap application for TT3 submitted by the Government
on March 21, 2011. Mar. 21 TT3 Aff. ¶ 49. Edwards argues
that this fact lends further support to his contention that the
Government was required to name him in its March 11
wiretap application. At best, the ELSUR check demonstrates
that the Government had probable cause to believe Edwards
was involved in the investigated conspiracy and that the
Government anticipated that he would become a target of a
wiretap. See Edwards, 889 F. Supp. 2d at 20-21. It says
nothing about whether Edwards’s communications were
likely to be intercepted over TT2. Accordingly, this argument
also lacks merit.
30
Edwards also claims that the Government violated 18
U.S.C. § 2518(1)(e) by failing to disclose in its March 11
Affidavit all prior wiretap applications that mentioned
Edwards. However, the prior application requirement applies
only to those individuals who must be named in the wiretap
application in the first place. See 18 U.S.C. § 2518(1)(e)
(requiring the disclosure of previous applications only for “the
same persons . . . specified in the application”). Because the
Government was not required to name Edwards in the March
11 Affidavit, it was also not required to disclose prior
applications naming Edwards.
We therefore hold that the district court did not err in
denying Edwards’s motion to suppress the fruits of the March
11 wiretap. To the extent Edwards seeks a Franks hearing
based on these same naming requirement claims, see
Appellants’ Br. 62-63, 66; Appellants’ Reply Br. 30, we reject
the contention for the same reasons.
b. Appellants jointly argue that the Government’s
omission of any information concerning Edwards from its
March 11 Affidavit, when combined with the wiretap
application’s other alleged deficiencies discussed above, see
supra Parts II.B.1-II.B.3, violated Title III’s necessity
requirement, requiring the suppression of all evidence derived
from the March 11 wiretap. They claim that the
Government’s alleged knowledge about Edwards and his
connection to Bowman proves that the Government knew that
Edwards was the source of Bowman’s supply. The March 11
wiretap, according to Appellants, was therefore unnecessary
because the Government already knew that Edwards was
Bowman’s drug supplier. Appellants are incorrect. Title III’s
necessity requirement obligates the Government to provide “a
full and complete statement” concerning only “whether or not
other investigative procedures have been tried and failed or
31
why they reasonably appear to be unlikely to succeed if
tried.” 18 U.S.C. § 2518(1)(c). Title III does not require the
Government to disclose every individual whom the
Government suspects might be involved in the allegedly
criminal activity. It requires only that the Government name
those individuals “if known, committing the offense and
whose communications are to be intercepted.” Id.
§ 2518(1)(b)(iv).
Appellants contend that had the Government included
information about Edwards in its March 11 Affidavit, it would
have been clear to the authorizing court that no further
wiretap surveillance was necessary because the information
would have demonstrated that the Government already knew
the source of Bowman’s drugs: Edwards. We disagree.
First, it is not clear that the Government had firm
information identifying Edwards as Bowman’s supplier. The
Government acknowledges that “investigators . . . had reason
to suspect Edwards was involved” but maintains that “they
certainly did not have proof he was Bowman’s conduit to
imported cocaine.” Appellee’s Br. 58-59. Without firm
proof, the Government persuasively contends that “holes
remained in the evidence that could only reasonably be filled
by a wiretap.” Id. at 58 (quoting Eiland, 738 F.3d at 349).
Second, even if the Government had included in its
March 11 application discussion of Edwards and had noted its
suspicion that he was Bowman’s source, we are not persuaded
that it would have changed the authorizing court’s necessity
analysis. Appellants claim in conclusory fashion that if the
Government had discussed Edwards in the March 11
application, it would have “caused the district judge to
scrutinize more carefully the March 11th application,”
Appellants’ Br. 55, but Appellants fail to specify how such
32
supposed close scrutiny would have changed the court’s
necessity analysis.
Like Appellants’ other claims concerning the alleged
deficiencies of the Government’s wiretap applications, we
find their arguments concerning the Government’s decision
not to name Edwards in its March 11 Affidavit unpersuasive.
Accordingly, we affirm the district court’s finding that the
Government’s March 11 Affidavit did not violate Title III’s
naming or necessity requirement.
III. Lay Opinion Testimony
Appellants also contend, renewing objections they made
before and during trial, that the district court erred in allowing
lay opinion testimony by FBI Special Agent John Bevington
that circumvented the requirements of Federal Rules of
Evidence 701, 702, and 704. Specifically, they contend that
Agent Bevington’s testimony conflated expert opinion with
lay opinion testimony by presenting as lay testimony
interpretations of audio and video recordings that were clearly
based on his expertise as an FBI agent. This error was not
harmless as to Williams, they contend, because Agent
Bevington’s testimony failed to adhere to limitations on
expert testimony and was used by the Government to
establish Williams’s (and to some extent Bowman’s) guilt.
Our review of the admission of Agent Bevington’s lay
opinion testimony is for abuse of discretion. See United
States v. Williams, 212 F.3d 1305, 1308 (D.C. Cir. 2000).
Our evaluation of the harmlessness of any such error proceeds
under the standard in Kotteakos v. United States, 328 U.S.
750, 764-65 (1946). See Bank of Nova Scotia v. United
States, 487 U.S. 250, 256 (1988). The Government has the
33
burden to show any error was not prejudicial. See United
States v. Smart, 98 F.3d 1379, 1390 (D.C. Cir. 1996).
In view of our opinion in United States v. Hampton, 718
F.3d 978 (D.C. Cir. 2013), which was decided after
Appellants’ trial, the Government concedes that some of
Agent Bevington’s lay opinion testimony was inadmissible
under Federal Rule of Evidence (“FRE”) 701 for failing to
establish the bases for his opinion but maintains that any error
was harmless. We agree and find other error as well. We
therefore conclude that the admission of Agent Bevington’s
lay opinion testimony was error under FRE 701 and that the
error was not harmless as to Williams. Accordingly, we
reverse Williams’s conviction and remand his case to the
district court for further proceedings.
A.
FRE 701 provides that a witness who is not testifying as
an expert may only provide testimony regarding his or her lay
opinion where it is: “(a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and (c) not based
on scientific, technical, or other specialized knowledge” of the
sort that is properly the subject of expert opinion testimony
under FRE 702. FRE 701 was designed to ensure that any
opinions offered by a lay witness are based on personal,
“first-hand knowledge or observation,” Fed. R. Evid. 701 adv.
comm. note (1972 proposed rule), and “a process of reasoning
familiar in everyday life,” Fed. R. Evid. 701 adv. comm. note
(2000 amend.) (quoting State v. Brown, 836 S.W.2d 530, 549
(Tenn. 1992)). The “prototypical example[s]” of lay opinion
testimony envisioned by the Advisory Committee when
proposing to add subsection (c) were opinions regarding
“items that cannot be described factually in words apart from
inferences,” such as size, degrees of darkness, speed, distance,
34
or whether a person appeared sad or angry. Fed. R. Evid. 701
adv. comm. note (2000 amend.) (quoting Asplundh Mfg. Div.
v. Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995)).
The addition of subsection (c) was intended to preclude
litigants from proffering an expert in lay witness’s clothing
and thereby avoid the disclosure and other requirements for
expert opinion testimony under FRE 702. See id. (citing
United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th
Cir. 1997)).
FRE 702 addresses expert testimony. It provides that a
witness who is “qualified as an expert by knowledge, skill,
experience, training, or education” may testify about his or
her opinion where: “(a) the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods;
and (d) the expert has reliably applied the principles and
methods to the facts of the case.” These factors reflect that
the Supreme Court has placed “gatekeeping” responsibilities
on the trial courts “at the outset” and thereafter during trial to
ensure that expert testimony is sufficiently reliable to help, as
opposed to confuse and hinder, the jury. Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 592, 597 (1993). The
Advisory Committee contemplated that this could be done
through “[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction,” which it
considered especially important in order to inform the jury of
the limits of expert testimony. Fed. R. Evid. 702 adv. comm.
note (2000 amend.) (quoting Daubert, 509 U.S. at 595). To
facilitate the evaluation of reliability, expert opinion
testimony is subject to disclosure requirements. See Fed. R.
Evid. 703 & 705; see also Fed. R. Civ. P. 26(a)(2); Fed. R.
Crim. P. 16(a)(1)(G). In addition, FRE 704(b) prohibits an
35
expert witness from “stat[ing] an opinion about whether [a]
defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense”
as such matters “are for the trier of fact alone.”
The court held in United States v. Wilson, 605 F.3d 985,
1026 (D.C. Cir. 2010), that “an individual without
personalized knowledge of a specific drug conspiracy may not
testify about drug topics that are beyond the understanding of
an average juror under Rule 701. Such a witness may be
permitted to testify only as an expert under Rule 702.” Lay
opinion is proper when it is based upon personal knowledge
of events that occurred in the case being tried, because “[a]n
individual testifying about the operations of a drug conspiracy
because of knowledge of that drug conspiracy has
‘particularized’ knowledge and should be admitted as a lay
witness.” Id. On the other hand, “an individual testifying
about the operations of a drug conspiracy based on previous
experiences with other drug conspiracies has ‘specialized’
knowledge and – provided his testimony meets the rule’s
enumerated requirements – should be admitted as an expert.”
Id. The court has “drawn that line because knowledge
derived from previous professional experience falls squarely
‘within the scope of Rule 702’ and thus by definition outside
of Rule 701.” United States v. Smith, 640 F.3d 358, 365
(D.C. Cir. 2011) (quoting FRE 701(c)).
More recently, in Hampton, 718 F.3d at 981-84, the court
held that the district court erred in admitting, over a proper
objection, lay opinion testimony by an FBI agent interpreting
recorded conversations between a defendant and an alleged
co-conspirator without requiring him to disclose the
“objective bases” of his opinion. As a consequence, FRE
701’s requirements were not met and the jury was denied the
information it needed in order to exercise its fact-finding
36
function by independently assessing the FBI agent’s lay
opinion. The court adopted the analysis of the Second Circuit
Court of Appeals stating: “[W]hen a witness has not identified
the objective bases for his opinion, the proffered opinion
obviously fails completely to meet the requirements of Rule
701, first because there is no way for the court to assess
whether it is rationally based on the witness’s perceptions,
and second because the opinion does not help the jury but
only tells it in conclusory fashion what it should find.” Id. at
981 (quoting United States v. Rea, 958 F.2d 1206, 1216 (2d
Cir. 1992)). The court concluded that the proffered bases for
the FBI agent’s opinion – namely, his having listened to “all
of the [recorded] calls” and his “knowledge of the entire
investigation” – was inadequate because its lack of specificity
invited “the risk that he was testifying based upon information
not before the jury, including hearsay” and left the jury with
“no way of verifying his inferences or of independently
reaching its own interpretations” as FRE 701 requires. Id at
982-83 (quoting United States v. Grinage, 390 F.3d 746, 750
(2d Cir. 2004)). Additionally, the court emphasized that
“[j]udicial scrutiny of a law-enforcement witness’s purported
basis for lay opinion is especially important because of the
risk that the jury will defer to the officer’s superior knowledge
of the case and past experiences with similar crimes.” Id at
981-82 (citing Grinage, 390 F.3d at 750-51).
As noted in Hampton, 718 F.3d at 983, the court’s
analysis reflects similar concerns the court has expressed with
regard to the Government’s use of overview and summary
witnesses to anticipate or interpret evidence for the jury, see
United States v. Moore, 651 F.3d 30, 57 (D.C. Cir. 2011),
concerns shared by other circuits, see United States v. Garcia,
413 F.3d 201, 210-17 (2d Cir. 2005); United States v. Casas,
356 F.3d 104, 117-20 (1st Cir. 2004). See also United States
v. Lemire, 720 F.2d 1327, 1348-50 (D.C. Cir. 1983).
37
Subsequent to Hampton, the court held in United States v.
Miller, 738 F.3d 361, 373 (D.C. Cir. 2013), that the admission
of lay opinion testimony by two FBI agents and a detective
who did not “set forth the specific bases (events, other calls,
seizures of contraband, etc.) upon which their opinions rested
. . . other than broad claims about knowledge they had gained
from the investigation” is plain error because the jury had “no
effective way to evaluate their opinions.”
B.
At trial, Agent Bevington provided two forms of opinion
testimony: lay opinion testimony interpreting recorded
conversations and other interactions between the alleged co-
conspirators that he had listened to or observed during the
FBI’s investigation, and expert opinion testimony on “the
interpretation of words and phrases used by drug traffickers.”
Trial Tr. 67 (Oct. 24, 2012, a.m. session). To distinguish
between the two, the prosecutor generally inquired about
Agent Bevington’s “expertise” or “expert opinion” when
seeking expert opinion testimony, and his “experience in this
case” or something similar when seeking lay opinion
testimony. In relation to Williams, however, the prosecutor
did not elicit expert opinion testimony regarding the meaning
of particular words or phrases. Instead, all of Agent
Bevington’s testimony interpreting wiretap recordings of
phone conversations and, in a few instances, surveillance
videos of meetings between Williams and Bowman was
offered as lay opinion testimony. These recorded interactions
between Williams and Bowman involved vague language and
ambiguous conduct, but neither explicitly referred to cocaine
nor showed Williams receiving cocaine from Bowman.
Nonetheless, Agent Bevington’s testimony interpreted them
for the jury as relating to the buying and selling of cocaine.
38
On direct examination, the prosecutor generally asked
what opinion Agent Bevington had regarding the meaning of
a specific recording based on his “experience in the
investigation,” “prior calls that he had listened to in the
investigation,” or something similar. For example, after
playing a wiretap recording of a March 20, 2011, phone
conversation between Bowman and Williams, the prosecutor
asked Agent Bevington: “Based upon your experience with
this investigation and the phone conversations that you’ve
intercepted, do you have an opinion of what Mr. Williams
was referring to when he stated, quote, [‘]I got one that is
going to go as soon as I get it from you and then I’m going to
get the one for me so is two possible?[’]” Agent Bevington
testified: “Yes. He had a customer that wanted a quantity of
cocaine but he also wanted a quantity of cocaine for himself.”
Trial Tr. 52-53 (Nov. 8, 2012, p.m. session).
At times, however, the prosecutor instead asked for
Agent Bevington’s opinion in reference to his review of
specific evidence. For example, after playing a wiretap
recording of a March 12, 2011, phone conversation between
Bowman and Williams, the prosecutor asked: “[B]ased upon
the other interceptions involving Mr. Bowman that we’ve
listened to from March 12th of 2011, and your observations of
the surveillances of Mr. Bowman that day, what did you
understand Mr. Bowman to be referring to when he told Mr.
Williams, quote, ‘I got a couple of other people coming to see
me, but you know what I mean, I don’t want all of you,
everybody to come at the same time’?” Agent Bevington
testified: “He was telling Mr. Williams that he had other
customers that he was going to be meeting with, and he didn’t
want all the customers to arrive at the same time.” Trial Tr.
73-74 (Nov. 8, 2012, a.m. session). On cross-examination,
when defense counsel asked whether his opinions regarding
the meaning of the conversations and interactions between
39
Bowman and Williams were “based on what [he] learned in
this investigation[,]” Agent Bevington testified: “Right, based
on what I overheard on the phone and what I saw in
surveillance, yes.” Trial Tr. 65 (Nov. 9, 2012, a.m. session).
The Government properly concedes in light of Hampton
that some of Agent Bevington’s lay opinion testimony about
Williams’s conversations with Bowman was inadmissible
because the articulated bases for his opinions referred too
generally to Agent Bevington’s knowledge of the
investigation or his review of unspecified phone calls or
surveillance operations. See Appellee’s Br. 75-76. In
Hampton, 718 F.3d at 982-83, Agent Bevington had referred
to having “listened to all of the calls . . . [and] done the
surveillance” and to his “knowledge of the entire
investigation” as the bases for his lay opinion. In Miller, 738
F.3d at 373, the FBI agents and detective similarly claimed to
have based their lay opinion on their “knowledge of the
overall investigation.” Neither explanation was held to be
sufficient under FRE 701. As the prosecutor and Agent
Bevington offered essentially the same objective bases for
Agent Bevington’s lay opinions here as in Hampton and
Miller, the requirements of FRE 701 were not met.
The lay opinion testimony that Agent Bevington provided
in response to questions referencing specific evidence also
failed to conform to the requirements of FRE 701. The
Government views this testimony as properly admitted under
Hampton because “[Agent] Bevington stated that [his]
opinions were based on specific calls and/or surveillance
operations conducted on precise dates.” Appellee’s Br. 75.
In fact, Agent Bevington stated no such thing. Instead, when
asked whether he had an opinion regarding the meaning of
certain conversations and interactions based on his review of
the specified evidence, Agent Bevington stated his
40
interpretation. Nowhere did Agent Bevington establish that
the evidence referenced in the prosecutor’s question was a
factual basis for his lay opinion testimony, let alone a
complete and accurate statement of the bases on which he
relied. Nor could the prosecution’s questions alone
necessarily establish the bases for Agent Bevington’s lay
opinion. Because, on this record, only Agent Bevington had
personal knowledge of what perceptions and reasoning he
relied on in formulating his lay opinion, only he was able to
provide the “sufficient factual foundation” necessary “to
admit lay opinion evidence rationally based on [his]
perception.” Williams, 212 F.3d at 1309 n.6; see also Garcia,
413 F.3d at 211-13 (citing Fed. R. Evid. 602). Hence, FRE
701 requires that “[a] witness . . . identif[y] the objective
bases for his [or her] opinion,” not the attorney directing the
examination. Hampton, 718 F.3d at 981 (emphasis added)
(quoting Rea, 958 F.2d at 1216). Otherwise, the prosecutor
could present rationalizations for Agent Bevington’s lay
opinions on which he may not have actually relied, effectively
vouching for the bases of his lay opinion, misleading the jury,
and defeating the purposes of FRE 701. Even assuming,
notwithstanding limitations on the use of leading questions,
see Green v. United States, 348 F.2d 340, 341-42 (D.C. Cir.
1965), this approach would suffice under FRE 701, the
Government points to no instance in which the prosecutor
elicited testimony from Agent Bevington that his lay opinion
was, in fact, based on the factual foundation stated in the
prosecutor’s question. Nor can such confirmation be inferred
from Agent Bevington’s responses in view of his testimony
on cross-examination that his opinions were based generally
on his observations throughout the investigation. See Trial
Tr. 65 (Nov. 9, 2012, a.m. session).
The requirement that Agent Bevington adequately
disclose the objective bases for his lay opinion stems from the
41
inter-related requirements of FRE 701. Without knowing
what observations and reasoning Agent Bevington relied on in
arriving at his lay opinion, it is doubtful the district court
could determine that his testimony was “rationally based on
[his] perception” as required by FRE 701(a), much less be
confident that his testimony would be “helpful” to the jury in
“clearly understanding the witness’s testimony or to
determining a fact in issue” by assisting it in its fact-finding
role as required by FRE 701(b). Instead, Agent Bevington’s
testimony may have been “based upon information not before
the jury, including hearsay,” thereby potentially “usurp[ing]
the jury’s function” by presenting the conclusion that should
be drawn from facts of which he, but not the jury, was fully
aware. Hampton, 718 F.3d at 983 (quoting Grinage, 390 F.3d
at 750-51). Jurors not informed of the bases for Agent
Bevington’s lay opinion might also have thought that Agent
Bevington “had knowledge beyond what was before them . . .
defer[ing] to the officer’s superior knowledge of the case and
past experiences with similar crimes,” id. at 981-83 (quoting
Grinage, 390 F.3d at 750), rather than independently reaching
their own opinions about the evidence and ultimately about
whether the Government had met its burden of proof. These
risks would not have been mitigated by admitting into
evidence all of the wiretap recordings and other investigatory
materials available to Agent Bevington because the jury
would still have been unaware of what exact perceptions and
reasoning led to his lay opinions. See id. at 983 (citing
Grinage, 390 F.3d at 747-48); see also id. at 984-86 (Brown,
J., concurring). Here, the Government confirmed that not all
of the surveillance videos that Agent Bevington
acknowledged he had reviewed as part of his investigation
were admitted in evidence, implying that his opinions may
have been partly based on information that was not before the
jury. When a witness fails to identify for the jury the specific
observations and inferences on which he grounds each lay
42
opinion, there is no way for the jury to independently evaluate
the testimony.
Additionally, ignorance of the bases for Agent
Bevington’s lay opinion testimony blurs the distinction in
FRE 701(c) between lay and expert opinion testimony. As
the Second Circuit has explained:
In 2001, Rule 701 was amended to provide that
testimony cannot be received as lay opinion if it is
based on scientific, technical, or other specialized
knowledge. Rather, a lay opinion must be the product
of reasoning processes familiar to the average person
in everyday life. . . . The purpose of this final
foundation requirement is to prevent a party from
conflating expert and lay opinion testimony thereby
conferring an aura of expertise on a witness without
satisfying the reliability standard for expert testimony
set forth in Rule 702 and the pre-trial disclosure
requirements set forth in [Federal Rule of Criminal
Procedure] 16 and [Federal Rule of Civil Procedure]
26. Thus, in considering the third prerequisite for lay
opinion testimony, a court must focus on the reasoning
process by which a witness reached his proffered
opinion. If the opinion rests in any way upon
scientific, technical, or other specialized knowledge,
its admissibility must be determined by reference to
Rule 702, not Rule 701.
Garcia, 413 F.3d at 215-16 (internal citations, footnote, and
quotation marks omitted). Allowing opinion testimony
without knowing whether Agent Bevington’s opinion
testimony was based to some extent on scientific, technical, or
specialized knowledge would leave the district court unable to
determine whether the reliability and disclosure requirements
43
of FRE 702 applied. As a result, there was a risk that Agent
Bevington’s opinion testimony may have provided expert
opinion on “a mental state or condition that constitutes an
element of the crime charged” contrary to FRE 704(b).
Furthermore, the Government’s use of Agent Bevington
as a “two-hatted” witness providing closely related lay and
expert opinion testimony exacerbated these risks. Although
the district court instructed the jury on the use of expert
testimony and required the prosecutor to signal in questioning
when Agent Bevington’s expert opinion was being sought, the
manner in which Agent Bevington’s expert and lay opinions
were interspersed during the trial required mental gymnastics
of the jurors in determining when he was testifying as an
expert and when he was not, risking confusion, particularly
absent an adequate explanation of the bases for his lay
opinions to distinguish them from his expert opinions. This
“two-hatted” circumstance is mentioned by Appellants only in
a footnote, see Appellants’ Br. 98 n.315, and on appeal they
do not challenge the jury instructions in this regard, much less
indicate that they sought an instruction to assist the jury in
distinguishing when Agent Bevington was not testifying as an
expert. See United States v. Rhodes, 62 F.3d 1449, 1453-54
(D.C. Cir. 1995), rev’d on other grounds, 517 U.S. 1164
(1996). The fact that an instruction was given on Agent
Bevington’s expert testimony alone could, in these
circumstances, have led the jury reasonably to assume that all
of his opinion testimony was based upon his expertise and not
merely on his own perceptions of events presented to the jury.
For these reasons, we hold that there was a significant
risk that Agent Bevington’s lay opinion testimony assumed an
“aura of special reliability and trustworthiness surrounding
expert testimony,” which may in turn have prejudiced
Williams. United States v. Cruz, 363 F.3d 187, 194 (2d Cir.
44
2004) (quoting United States v. Dukagjini, 326 F.3d 45, 53
(2d Cir. 2002)).
C.
The question remains whether the error in admitting
Agent Bevington’s lay opinion testimony was prejudicial.
Appellants maintain that the error was prejudicial. This
depends on whether, “after examining the record as a whole,”
the court concludes that “[the] error may have had ‘substantial
influence’ on the outcome of the proceeding.” Bank of Nova
Scotia, 487 U.S. at 256 (quoting Kotteakos, 328 U.S. at 765).
That is:
[I]f one cannot say, with fair assurance, after
pondering all that happened without stripping the
erroneous action from the whole, that the judgment
was not substantially swayed by the error, it is
impossible to conclude that substantial rights were not
affected. The inquiry cannot be merely whether there
was enough to support the result, apart from the phase
affected by the error. It is rather, even so, whether the
error itself had substantial influence. If so, or if one is
left in grave doubt, the conviction cannot stand.
Kotteakos, 328 U.S. at 765. In other words, the “harmless
error test . . . is not a mere sufficiency-of-the-evidence
inquiry,” but requires reversal if the properly admitted
evidence is “even slightly ambiguous” and there is any risk
that the error might not be harmless. Smart, 98 F.3d at 1391-
92.
The Government points to the “overwhelming evidence
of Williams’s and Bowman’s guilt” as indicating that Agent
Bevington’s lay opinions were likely unnecessary, an
observation that the district court also made during trial.
45
Appellee’s Br. 79. But unlike the overwhelming physical and
testimonial evidence supporting the convictions of Bowman
and Edwards, eliminating any suggestion their convictions
must be reversed, the evidence against Williams was of a far
lesser order. Agent Bevington conceded on cross-
examination that there was no direct evidence before the jury
that Williams possessed or sold cocaine to third parties or
interacted with co-conspirators other than Bowman. No
witness testified to having bought cocaine from Williams; no
surveillance video showed him handling anything that any
witness identified as cocaine; no audio tape disclosed him
discussing cocaine, or anything that any witness other than
Agent Bevington identified as cocaine; no one testified to
stopping or arresting Williams and finding cocaine in his car,
his home, or otherwise in his possession. See Trial Tr. 66-72
(Nov. 9, 2012, a.m. session).
The prosecutor’s closing argument focused instead on the
interactions between Williams and Bowman as showing “the
same exact pattern” as Bowman’s interactions with others to
whom he was selling cocaine, and told the jurors to “[a]sk
[them]selves” whether “it makes any sense that people would
speak on the phone in the manner that William Bowman and
Henry Williams did” if they were not “discussing drug
trafficking.” Trial Tr. 49-50 (Nov. 15, 2012, a.m. session). In
other words, in the absence of direct evidence of Williams’s
guilt, the prosecutor relied on the inferences jurors were
willing to draw from Williams’s interactions with Bowman,
as reflected in the wiretap and surveillance recordings the jury
had viewed at trial. This is the exact subject addressed by
Agent Bevington’s erroneously admitted lay opinion
testimony, which told the jury to interpret the circumstantial
evidence as showing that Williams was buying cocaine from
Bowman in amounts that indicated his intent to sell drugs to
third parties. Agent Bevington told the jurors not only what
46
he thought, but his opinion of what the evidence showed and
that he had substantial experience in drug conspiracy
investigations and was involved in the FBI investigation that
resulted in Appellants’ indictments. As in Hampton, 718 F.3d
at 984, there was a strong “likelihood that the jurors afforded
[Agent] Bevington substantial authority because of his
expertise and access to information unavailable to them,”
allowing his lay opinion testimony to influence their decision.
Indeed, the district court observed that “the jury’s
determination as to whether or not . . . Williams was a
member of the conspiracy may turn on whether the jury
chooses to credit lay opinions expressed by FBI Special
Agent Bevington, or reach their own conclusions as to the
nature of certain phone calls between Defendants Bowman
and Williams.” Order at 4, United States v. Edwards, 11-cr-
129 (D.D.C. Nov. 12, 2012), ECF No. 561.
Under the circumstances, the court cannot “say, with fair
assurance, . . . that the judgment [as to Williams] was not
substantially swayed by the error” as to render it harmless,
Kotteakos, 328 U.S. at 765, and his conviction for conspiring
to distribute and possess less than 500 grams of cocaine must
be reversed.
D.
The question remains whether Williams can be retried.
Appellants contend that the district court erred in denying his
motion for a judgment of acquittal because of the
insufficiency of the evidence against him. If that is correct,
then he is entitled to a judgment of acquittal and his retrial
would be barred under the Double Jeopardy Clause of the
Fifth Amendment. See Burks v. United States, 437 U.S. 1,
13-17 (1978). Appellants are not correct, however.
47
Viewing the evidence in the light most favorable to the
Government, as the court must, “[a] rational trier of fact could
have found the essential elements of [Williams’s] crime
beyond a reasonable doubt” based on the properly admitted
evidence. United States v. Dykes, 406 F.3d 717, 721 (D.C.
Cir. 2005) (quoting United States v. Arrington, 309 F.3d 40,
48 (D.C. Cir. 2002) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979))). The court recently declined to decide
whether, in evaluating a claim for insufficient evidence, a
court should consider all the evidence before the jury or only
that evidence not erroneously admitted, see United States v.
McGill, 815 F.3d 846, 927-28 (D.C. Cir. 2016)
(distinguishing Lockhart v. Nelson, 488 U.S. 33, 39-42
(1988)), and because it makes no difference to the conclusion
here, we assume without deciding that the more demanding
standard applies and do not consider Agent Bevington’s
erroneously admitted lay opinion testimony.
To prove the essential elements of a narcotics conspiracy
under 21 U.S.C. § 846, the Government had to show that
Williams “knowingly entered into the . . . conspiracy with the
specific intent to further its objective of distributing
narcotics.” United States v. Gaskins, 690 F.3d 569, 577 (D.C.
Cir. 2012). Such an agreement can be inferred from
circumstantial evidence. See United States v. Gatling, 96
F.3d 1511, 1518 (D.C. Cir. 1996). Even without Agent
Bevington’s lay opinion testimony, there was sufficient
evidence to show Williams’s knowing involvement in the
charged conspiracy. The evidence shows that Bowman and
Edwards received a shipment of cocaine on or about March
10, 2011. As confirmed by wiretap recordings, surveillance
videos, and testimony of cooperating witnesses, Bowman
shortly thereafter began to make arrangements to sell cocaine
to individuals who met him in the vicinity of the “Shrimp
Boat” restaurant and a nearby condominium. Bowman
48
continued to make cocaine sales at these and other locations
for several weeks.
Bowman’s interactions with Williams paralleled
Bowman’s interactions with other alleged co-conspirators. At
trial, wiretap recordings of their phone conversations in
January and February 2011 showed that Williams repeatedly
checked with Bowman regarding the status of some
unspecified event, which Bowman generally indicated had not
yet happened. On March 12, 2011, however, Bowman
phoned Williams to tell him that he could “holler at
[Bowman] in a little bit” near the Shrimp Boat restaurant, but
warned Williams that he had a “couple of other people
coming to see [him]” and “d[id]n’t want . . . everybody to
come at the same time.” Gov’t Ex. 3056A. Bowman and
Williams were videotaped meeting that evening outside the
Shrimp Boat restaurant sitting in Williams’s car.
Bowman and Williams spoke again the morning of
March 15, 2011, and arranged to meet again later that day.
Security footage at a public storage facility where Bowman
and Edwards stored and processed cocaine for distribution
showed Bowman visiting the facility shortly before his
meeting with Williams. Bowman and Williams were later
videotaped meeting outside the Shrimp Boat restaurant.
Williams called Bowman again on March 20, 2011, and
asked if Bowman was “still . . . alright with man” and whether
“two [was] possible,” saying: “I got one that gonna go as soon
as I get it from you, is gonna go, and then I’m gonna get the
one for me.” Gov’t Ex. 3096A. Bowman said it was
possible. In a wiretapped phone conversation the next day on
March 21, 2011, Bowman phoned Moorer, a confessed co-
conspirator of Bowman and Edwards, and told him: “You
know what I just told you? . . . Just add . . . to that one.”
49
Gov’t Ex. 3129A. Moorer testified as a cooperating witness
at trial that this was Bowman requesting that Moorer bring
him more cocaine. A videotape showed Bowman meeting
with Moorer on March 21, 2011, when Moorer provided
Bowman with what Moorer testified were three sixty-two-
gram quantities of cocaine. As Moorer testified at trial:
“When I met [Bowman], he told me . . . two guys wanted
[cocaine]. I guess one of them wanted more.” Trial Tr. 35
(Nov. 2, 2012, p.m. session). In two wiretapped phone
conversations on March 22, 2011, Williams asked Bowman
questions to the effect of: “[B]efore I get rid of this joint . . .
[y]ou . . . good for tomorrow? You got it?” Gov’t Ex.
3107A; see also Gov’t Ex. 3106A. Bowman replied he did.
The next day, March 23, 2011, a surveillance video showed
Bowman and Williams meeting once again in Williams’s car
outside the Shrimp Boat restaurant.
A reasonable juror could infer from this evidence and
evidence regarding Bowman’s sales to other alleged co-
conspirators that Bowman and Williams were engaged in
cocaine trafficking. Unlike in Gaskins, 690 F.3d at 574, on
which Appellants rely, this is not a case in which there was
“no evidence that [Williams] participated in any drug
transactions or conspiratorial meetings . . . [or] was ever
present at or near the” site of the conspiracy’s activities.
Instead, a juror could reasonably find that Bowman was
selling cocaine to Williams based on the timing, nature, and
locations of Bowman’s interactions with Williams. From the
frequency with which he received quantities of cocaine from
Bowman, as well as his March 20 statement (“I got one that
gonna go as soon as I get it from you . . . and then I’m gonna
get the one for me,” Gov’t Ex. 3096A), a reasonable juror
could also find that Williams intended to distribute cocaine to
third parties. And a reasonable juror could find that Bowman
and Williams’s frequent discussion of others who were
50
involved in similar activities with Bowman showed that
Williams had the requisite knowledge of the conspiracy. That
there may be alternative interpretations of the evidence is not
relevant because the court must presume that the jury resolved
any conflicting inferences supported by the record in the
Government’s favor. See Jackson, 443 U.S. at 326.
Accordingly, we hold that the district court did not err in
denying Williams’s motion for a judgment of acquittal.
IV. Wired Plea Agreement
Bowman argues that the Government violated his Fifth
Amendment due process rights by offering him a “wired” plea
deal that was contingent on Williams pleading guilty to the
charged drug conspiracy. According to Bowman, the
Government knew that a jury would only convict Williams if
he was associated with the more culpable Bowman and so
wired Bowman’s plea in a bad-faith attempt to ensure the two
were tried together.
As a threshold matter, the parties disagree over the
applicable standard of review. Bowman contends that his due
process claim is subject to de novo review. Cf. United States
v. Straker, 800 F.3d 570, 629 (D.C. Cir. 2015). The
Government, by contrast, argues that plain error review
applies because Bowman did not raise his constitutional
challenge before the district court. See United States v.
Mahdi, 598 F.3d 883, 888 (D.C. Cir. 2010). We need not
resolve that disagreement because Bowman’s due process
argument fails under either standard. The parties also dispute
whether the Government offered Bowman an opportunity to
accept an “unwired” plea deal conditioned only on his own
cooperation with the Government, rather than on Williams
also pleading guilty. That preliminary factual dispute is
51
immaterial because, as we explain below, the Government’s
“wired” plea agreement was constitutionally permissible.
Bowman’s due process challenge fails under United
States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992). There, the
Government conditioned any plea agreement for the
defendant’s ailing wife on the defendant also pleading guilty.
See id. at 1015, 1020. The defendant accepted that wired plea
deal but claimed that it violated his due process rights by
effectively coercing him into pleading guilty to secure a plea
deal for his wife. See id. at 1020 (citing Fontaine v. United
States, 411 U.S. 213, 214-15 (1973)). The court concluded
that the defendant’s due process argument was meritless and
joined its sister circuits in holding that plea wiring “does not,
per se, offend due process.” Id. The court explained that the
wired plea accepted by the defendant was constitutional
because the Government “had probable cause to arrest and
prosecute both defendants in a related crime, and there [wa]s
no suggestion that the government conducted itself in bad
faith in an effort to generate additional leverage over the
defendant.” Id. at 1021.
There is even less concern on this record than in Pollard
that Bowman was somehow coerced by the Government’s
decision to offer him a plea deal contingent on a co-
defendant’s guilty plea. There is no argument here that the
Government induced Bowman to plead guilty by promising a
shorter sentence for any loved one or spouse. Cf. id. (“We
can understand how it might be thought that a threat of long
imprisonment for a loved one, particularly a spouse, would
constitute even greater pressure on a defendant than a direct
threat to him.”). Nothing in the record suggests that the
Government wired Bowman’s plea in a bad-faith effort to
coerce him into involuntarily accepting a plea or to convict
Williams based on guilt by association. Rather, the
52
Government offered Bowman the opportunity to plead guilty
to a lower sentence if his alleged co-conspirator, Williams,
also pleaded guilty. A plea offer that reflects the
Government’s apparent preference either to accept guilty
pleas from both defendants or, if it must try Williams, to try
Bowman as well provides no basis to conclude that the
Government’s offer was coercive or made in bad faith.
Bowman nevertheless urges us to infer the Government’s bad
faith from the fact that Williams played a much more minor
role in the charged conspiracy. But we decline the invitation
to assign nefarious intent to the Government’s conduct based
on Bowman’s speculation. Bowman also contends that the
wired plea was itself evidence of the Government’s intent to
force Williams and Bowman into a joint trial. The district
court had denied Williams’s request to sever his trial from
that of his co-defendants, thereby authorizing the Government
to proceed against both defendants in the same trial. The
record belies Bowman’s assertion that the wired plea was an
unconstitutionally coercive ploy to try Williams and Bowman
together.
Additionally, the Government had probable cause to
arrest and prosecute both Bowman and Williams for their
participation in the charged drug trafficking conspiracy. As in
Pollard, there is no plausible basis for Bowman’s suggestion
that the Government resorted to “bad faith in an effort to
generate additional leverage” over Bowman and Williams.
Id. In light of the evidence and information gathered from
wiretaps, physical surveillance, and confidential sources, see
supra Parts I & III.D, the arresting agents reasonably
concluded that Bowman and Williams each participated in the
suspected cocaine distribution conspiracy. See generally
United States v. Holder, 990 F.2d 1327, 1328 (D.C. Cir.
1993) (“Probable cause exists if a reasonable and prudent
police officer would conclude from the totality of the
53
circumstances that a crime has been or is being committed.”).
It is undisputed that the Government obtained a valid
indictment charging both Bowman and Williams with
conspiring to distribute cocaine, which “conclusively
determines the existence of probable cause” in their criminal
case. Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975).
Because the Government “had probable cause to [arrest and]
prosecute” Bowman and Williams and “obtained a valid
indictment” against them, “it was entitled . . . to prosecute
[Appellants] fully” or “to offer lenience.” Pollard, 959 F.2d
at 1021. Bowman might have preferred an offer of lenience
in the form of an unwired plea agreement, but he had “no
right to be offered a plea” at all, Missouri v. Frye, 132 S. Ct.
1399, 1410 (2012), much less the particular plea agreement of
his choosing. Accordingly, the Government’s plea offer did
not violate Bowman’s due process rights.
V. Acquitted Conduct in Sentencing
Edwards argues that the district court violated his Fifth
and Sixth Amendment rights by increasing his sentence based
on his possession of a firearm, even though the jury had
acquitted him of that same conduct. Controlling precedent
squarely forecloses that argument, as Edwards correctly
acknowledges. In United States v. Bell, 795 F.3d 88 (D.C.
Cir. 2015), this court stated that “long-standing precedents of
the Supreme Court and this Court establish that a sentencing
judge may consider uncharged or even acquitted conduct in
calculating an appropriate sentence, so long as that conduct
has been proved by a preponderance of the evidence and the
sentence does not exceed the statutory maximum for the
crime of conviction or increase the statutory mandatory
minimum.” Id. at 103 (internal quotation marks omitted); see
United States v. Jones, 744 F.3d 1362, 1369 (D.C. Cir. 2014);
United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir.
54
2008). Because Bell is binding on this panel – and
notwithstanding the serious concerns that some have raised,
see United States v. Bell, 808 F.3d 926, 928-32 (D.C. Cir.
2015) (Millett, J., concurring in denial of rehearing en banc);
id. at 927-28 (Kavanaugh, J., same) – we must reject
Edwards’s constitutional challenge and affirm his sentence.
See LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir.
1996) (en banc).
Conclusion
For the foregoing reasons, we affirm the judgments of the
district court with respect to each Appellant, with the
exception of Williams. Because the district court’s admission
of Agent Bevington’s lay opinion testimony was error under
FRE 701 and that error was not harmless, we reverse
Williams’s conviction and remand the case to the district
court for further proceedings. We therefore need not reach
the question whether the district court erred by refusing to
provide the jury with a multiple conspiracies instruction, issue
limiting instructions concerning specific evidence submitted
against Edwards and Bowman, or sever Williams’s trial from
that of Edwards and Bowman.
So ordered.