United States v. Ernest Glover , 872 F.3d 625 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2017 Decided October 10, 2017
No. 16-3011
UNITED STATES OF AMERICA,
APPELLEE
v.
ERNEST MILTON GLOVER, ALSO KNOWN AS FISH,
APPELLANT
Consolidated with 16-3019
Appeals from the United States District Court
for the District of Columbia
(No. 1:07-cr-00152)
Booth Marcus Ripke argued the cause for appellant Helery
Price. Nicholas G. Madiou, appointed by the court, argued the
cause for appellant Ernest M. Glover. On the joint briefs were
Larry Allen Nathans, appointed by the court, and Michael
Edward Lawlor.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Elizabeth
Trosman, Elizabeth H. Danello, Anthony Scarpelli, and
Bernard J. Delia, Assistant U.S. Attorneys.
2
Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Ernest Milton Glover and Helery
Price here appeal the denial of their petitions to vacate their
convictions under 28 U.S.C. § 2255. Appellants were
convicted of conspiracy to possess with intent to distribute and
to distribute one kilogram or more of phencyclidine, commonly
known as “PCP,” 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), & 846,
and were sentenced to the applicable statutory mandatory
minimum of life imprisonment.
This Court has reviewed the underlying criminal
prosecution on a few occasions, including Glover’s and Price’s
direct appeal, see United States v. Glover (“Direct Appeal”),
681 F.3d 411 (D.C. Cir. 2012), and, most recently, an appeal
from the denial of co-defendant Anthony Maurice Suggs’s
§ 2255 habeas petition, United States v. Suggs, 688 F. App’x
17 (D.C. Cir. 2017). The habeas petitions here present two
issues upon which the District Court issued a Certificate of
Appealability: (1) whether counsel was ineffective for failing
to challenge evidence obtained from an electronic surveillance
device unlawfully installed in a vehicle outside of the
authorizing court’s geographic jurisdiction (the “Truck Bug”),
and (2) whether counsel was ineffective for failing to object to
specific instances of case agent John Bevington’s testimony in
which Bevington offered interpretations of evidence reflecting
his knowledge of the investigation as a whole, which this Court
rejected as contrary to Federal Rule of Evidence 701 in the
appeal of a separate conviction arising out of the same
conspiracy, see United States v. Hampton, 718 F.3d 978 (D.C.
Cir. 2013).
3
We conclude that counsel did not perform deficiently in
failing to challenge the Truck Bug. In light of that, the
evidence against Appellants was sufficiently strong that
counsel’s failure to object to specific instances of testimony by
Bevington did not prejudice the defense, and we therefore
affirm.
BACKGROUND
Appellants were convicted in a jury trial that took place
between February 11, 2008, and March 13, 2008. In addition
to Price, also known as “Brother,” and Glover, also known as
“Fish” or “Ernie,” targets of the investigation leading to this
prosecution included Anthony “Applejack” or “Ap” Suggs,
James Parker, Glendale Lee, Ernest Glover’s brother Lonnell
Glover, and Ernest Glover’s relative Cornell “Tony” Glover,1
among others. During the trial, FBI case agent John Bevington
testified multiple times, describing the investigation and
providing the foundation for the introduction of surveillance
recordings from two authorizations: a bug installed in
co-conspirator Lonnell Glover’s truck and a wiretap of Suggs’s
cell phone.
The surveillance evidence from the Truck Bug made up a
small, but important, part of the evidence against Glover and
Price. The bug was authorized by Judge Collyer of the District
Court for the District of Columbia. United States v. Lonnell
Glover, 736 F.3d 509, 510 (D.C. Cir. 2013). The FBI affidavit
in support of the warrant for the Truck Bug identified both
Appellants by name as targets of the investigation. The
affidavit stated that the truck was parked at BWI Airport, and
that is where the agents installed the bug.
1
We refer to Lonnell Glover and Cornell Glover by their full
names to avoid confusion with Appellant Ernest Glover.
4
The prosecution introduced five recordings from the Truck
Bug at Appellants’ trial – three conversations between Lonnell
Glover and Suggs and one conversation apiece between
Lonnell Glover and two other associates. None of the Truck
Bug recordings captured conversations with Appellants, but
the interlocutors recorded by the Truck Bug discussed them. In
Truck Activation 186, Suggs described to Lonnell Glover that
“Ernie . . . had owed me, you know I was gonna get my paper
from him” and had told Suggs “I might got half and owe you
half.” In Truck Activation 706, Lonnell Glover told Cornell
“Tony” Glover that “Ap just got a 16 for Fish, that there is
moving already,” referring in slang to a quantity of PCP and to
Ernest Glover by his nickname, “Fish.” As to Price, Truck
Activation 91 included a discussion in which Suggs told
Lonnell Glover that he would put “[B]rother” “on hold till you
get back,” despite requests for “halves.” Truck Activation 604
recorded Lonnell Glover and Suggs discussing whether to
“give Brother the old water or the new water,” to make sure
that Brother’s “regular people” were “satisfied happy.” Suggs
told Lonnell Glover that “Brother needs a gallon,” repeating
“Brother, I know what he want a gallon.” This recording from
the Truck Bug was a critical piece of evidence against Price,
since his nickname is “Brother” and “water” is a slang term for
PCP, and the prosecution used the phrase “Brother wants a
gallon” in both the opening and closing arguments. Lonnell
Glover and Suggs also discussed Ernest Glover in their
conversation in Activation 604, with Lonnell saying that
“Fish . . . got to get clean” and Suggs commenting on whether
Ernest Glover was “owing somebody.”
The prosecution also introduced approximately 80 calls
from the Suggs cell phone wiretap, and the testimony about
these recordings occupied a substantial part of the trial. In
many of the calls, Appellants and their associates discussed
getting together in the future or coordinating a
5
contemporaneous rendezvous. For example, in Activation 384,
Price told Suggs “come and see me tomorrow. That be
good . . . . I’ll hit you tomorrow. Hit me tomorrow cause them
peoples been pressing me for real. I just ain’t get on top of it.”
In Activation 628, Price and Suggs reacted to viewing FBI
surveillance vehicles when they were on their way to meet one
another. They called off their meeting in apparent suspicion
that they were being surveilled. See Trial Tr. 7:10-9:13 (Feb.
27, 2008, Afternoon Sess.). In other calls recorded by the
Suggs wiretap, Appellants and their confederates discussed
money. For instance, in Activation 2227, Suggs and Glover
discussed money in terms like “tray,” “deuce,” and “piano.” In
Activation 5443, Price left a voicemail for Suggs, requesting
that Suggs answer his phone and adding: “you don’t like a
moola or what?”
The prosecution utilized FBI case agent Bevington to
introduce the recordings from the phone wiretap and the Truck
Bug. Some of the recordings were introduced with minimal
commentary, with Bevington simply providing the time and
date information as foundation. See, e.g., Trial Tr. 73:2-20
(Feb. 21, 2008, Morning Sess.). However, on other occasions,
Bevington testified about the significance of the recorded
communications. For example, after a line of recordings in
which Price and Suggs discussed seemingly random items,
Bevington testified that “book,” “Sister Sister magazine,” and
“information” meant PCP, explaining that “[t]hey’ve changed
the code multiple times. But they’re clearly not talking about
or using the same words to talk about what they’re talking
about.” Trial Tr. 99:3-9 (Feb. 27, 2008, Morning Sess.).
Interpreting a conversation in which Suggs informed Price that
“we should have that apartment cleaned out one day this week
then you can move in there,” Bevington explained his view that
the exchange was “Mr. Suggs letting Mr. Price know that he
should have PCP for sale the following week” based on
6
Bevington’s observation “during the course of the investigation
[that] there was never any indication that Mr. Suggs was
renting apartments or owned property.” Trial Tr. 12:16-23
(Feb. 27, 2008, Morning Sess.).
Other evidence against Appellants included significant
physical evidence recovered when police searched Glover’s
residence, including $985 in cash, a dollar bill with a substance
suspected to be heroin, and a digital scale from a bedroom
where Glover’s wallet was found. In the kitchen, police found
baggies, including one baggie containing heroin. In a basement
closet, police found shoeboxes full of small glass bottles, a
turkey baster, objects similar to eyedroppers, funnels, a juice
bottle with the odor of PCP, vanilla extract bottles with the odor
of PCP, a rifle, a shotgun, and ammunition. The District Court
found that the juice bottle contained 178.1 grams of PCP and
the vanilla extract bottles contained 6.2 grams of PCP. The
recovered items were compelling evidence against Glover in
particular, as they connected Glover to the drugs and
contextualized his conversations with Suggs and other co-
conspirators. Except for the heroin and weapons, which were
admitted only against Glover, this evidence also contributed to
the case against Price.
In addition, by stipulation, the jury was told that Glover
was previously convicted of unlawful distribution of PCP,
based on six controlled purchases between April 25, 1994 and
February 13, 1996. Trial Tr. 42:21-43:16 (Feb. 25, 2008,
Morning Sess.). A search executed at Glover’s residence
pursuant to the investigation in Glover’s previous case revealed
seven bottles with trace amounts of PCP. Id. at 43:5-11. This
stipulation, too, was admissible against Glover alone.
Further direct evidence relating more closely to other
co-conspirators added to the case against Glover and Price. The
7
FBI investigation conducted two controlled buys of PCP – one
from co-defendant James Parker on January 4, 2007, and one
from Suggs on January 20, 2007. On three separate occasions,
agents videotaped meetings between members of the PCP
conspiracy. And law enforcement ultimately seized significant
quantities of PCP and paraphernalia from the residences of
various co-conspirators, including 7.7 kilograms of PCP from
Suggs’s residence.
The jury convicted Appellants based on this body of
evidence, and Appellants were sentenced to the mandatory
minimum of life imprisonment. This Court affirmed on direct
appeal and described the evidence against Glover and Price as
“extensive” and “voluminous.” Direct Appeal, 681 F.3d at
417, 424.
Certain later developments in the cases of others affiliated
with this conspiracy are relevant to the issues now before us.
After Appellants’ direct appeal was decided, this Court
decided the appeal of Jerome Hampton, another Lonnell
Glover associate convicted in a separate trial. United States v.
Hampton, 718 F.3d 978 (D.C. Cir. 2013). Hampton challenged
the testimony of Agent Bevington as impermissible lay opinion
testimony based on Bevington’s understanding of the
investigation as a whole. The Court agreed, reasoning that
“[w]hen Bevington interpreted those conversations on the basis
of his listening to ‘all of the calls,’ the jury had no way of
verifying his inferences or of independently reaching its own
interpretations.” Id. at 983. The Court noted the “weakness of
the government’s other evidence,” including that there was no
direct evidence tying Hampton to the drugs, and concluded that
the error in admitting Bevington’s opinion testimony was not
harmless because of its “importance . . . to the government’s
case.” Id. at 984.
8
In addition, Lonnell Glover’s conviction in a separate trial
was overturned on the basis that the warrant authorizing the
Truck Bug was facially insufficient. The warrant stated that
the FBI could install the device in the District of Columbia, the
District of Maryland, or the Eastern District of Virginia, and
they did so while the truck was parked in Maryland. Lonnell
Glover, 736 F.3d at 510. This Court concluded that the warrant
was unlawful because a judge can only authorize interception
“within the territorial jurisdiction of the court in which the
judge is sitting.” Id. at 514 (emphasis in original) (quotation
marks omitted). The Court held that the failure to preclude the
Truck Bug evidence was plain error, noting that the prejudice
was “indisputable” because “[t]he truck bug recordings were,
in the words of the prosecuting attorney at trial, some of the
‘most incriminating’ and ‘most powerful’ evidence at trial, and
there is a high likelihood that this evidence affected the
outcome.” Id. at 516. The Court remanded for a new trial. Id.
at 517.
LEGAL STANDARDS
This Court reviews de novo a denial of an ineffective
assistance of counsel claim. United States v. Abney, 812 F.3d
1079, 1087 (D.C. Cir. 2016). We measure effectiveness of
counsel by the familiar standard of Strickland v. Washington,
466 U.S. 668 (1984). To show ineffective assistance of
counsel, a defendant must show “that counsel’s performance
was deficient” such that “counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment”
and that “the deficient performance prejudiced the defense.”
Strickland, 446 U.S. at 687. Prejudice requires a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different” – that is,
the defendant must show “a probability sufficient to undermine
confidence in the outcome.” Id. at 694. A court can deny an
9
ineffectiveness claim on either the deficiency or prejudice
prong. Id. at 697.
“[T]he same standard applies with respect to claims of the
ineffective assistance of appellate counsel.” Payne v.
Stansberry, 760 F.3d 10, 13 (D.C. Cir. 2014). This Court has
recognized that “effective appellate advocacy often entails
screening out weaker issues,” and “a reasonable winnowing of
weaker appellate claims” may include the “decision to forego”
some claims. Id. at 13-14 (quotation marks omitted). Even
where a claim would be subject to plain-error review, however,
counsel may be ineffective for failing to raise an “issue [that]
had a reasonable likelihood of success,” absent a strategic
justification for that decision. Id. at 14.
DISCUSSION
I.
Appellants argue that counsel was ineffective for failing to
seek to suppress the recordings from the unlawfully installed
Truck Bug. The Truck Bug was authorized pursuant to Title
III of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. § 2510 et seq. Congress provided that “[a]ny
aggrieved person . . . may move to suppress the contents” of an
“unlawfully intercepted” communication. 18 U.S.C.
§ 2518(10)(a)(i). Appellants’ claim for suppression is based on
Title III’s provision that “‘aggrieved person’ means a person
who was a party to any intercepted wire, oral, or electronic
communication or a person against whom the interception was
directed.” 18 U.S.C. § 2510(11). Appellants argue that this
term includes targets named in an application or order for
surveillance, regardless of whether the surveillance actually
captures said targets’ communication, since a named target is
“a person against whom the interception was directed,” id. We
need not resolve the question of Title III target standing
10
because the existence of an entrenched disagreement between
jurisdictions itself answers the Strickland question before us:
counsel was not ineffective for failing to raise a challenge of
uncertain merit based on unsettled law.
The question of so-called “target” standing under Title III
has been litigated since the law’s enactment. In Alderman v.
United States, a Fourth Amendment suppression case, the
Supreme Court held that defendants lack standing to challenge
a search of someone else, reasoning that “suppression of the
product of a Fourth Amendment violation can be successfully
urged only by those whose rights were violated by the search
itself, not by those who are aggrieved solely by the introduction
of damaging evidence.” 394 U.S. 165, 171-72 (1969). The
Court remarked that legislatures could extend the Fourth
Amendment exclusionary rule if they so desired, noting that:
Congress has not done so. In its recent wiretapping
and eavesdropping legislation, Congress has
provided only that an “aggrieved person” may move
to suppress the contents of a wire or oral
communication intercepted in violation of the Act.
Title III, Omnibus Crime Control and Safe Streets
Act of 1968, 82 Stat. 221 (18 U.S.C. § 2518(10)(a)
(1964 ed., Supp. IV)). The Act’s legislative history
indicates that “aggrieved person,” the limiting phrase
currently found in Fed. Rule Crim. Proc. 41(e),
should be construed in accordance with existent
standing rules.
Id. at 175 n.9 (citing S. Rep. No. 1097, 90th Cong., 2d Sess., at
91, 106). A decade later in Rakas v. Illinois, the Supreme Court
specifically declined to extend standing under the Fourth
Amendment to the “target” of a search or seizure. 439 U.S.
128, 135 (1978). In so holding, the Court rejected an argument
11
that language in the pre-Title III case Jones v. United States,
362 U.S. 257 (1960), implied standing under the Fourth
Amendment for “one against whom the search was directed.”
Rakas, 439 U.S. at 134-35. Some courts have understood this
progression to undermine target standing under Title III.
According to these courts, the “existent [Fourth Amendment]
standing rules” that Congress incorporated when it enacted
Title III included the rule, later clarified in Rakas, that those
against whom surveillance is directed have no standing unless
they were directly victimized by the Fourth Amendment
violation. See, e.g., United States v. Cruz, 594 F.2d 268, 273
(1st Cir. 1979) (stating that “[w]e have also addressed the
question of who is an ‘aggrieved person’ under [Title III]” and
citing a case discussing Fourth Amendment standing); United
States v. Scasino, 513 F.2d 47, 50 (5th Cir. 1975) (reasoning
that “[u]nder prestatutory fourth amendment law, one does not
have standing to suppress an illegal wiretap unless his
conversations were overheard or the conversations occurred on
his premises”).
But courts disagree. Among them, the Ninth Circuit has
found standing under Title III where “[a defendant’s]
conversations were the target of the surveillance.” United
States v. Oliva, 705 F.3d 390, 395 (9th Cir. 2012). The Sixth
Circuit has implied that being listed as a “Target Subject” on a
wiretap application would confer standing as an “aggrieved
person” under 18 U.S.C. § 2510(11). United States v. Asker,
676 F. App’x 447, 455 (6th Cir. 2017) (noting that in the
conversations the defendant sought to suppress, “[defendant]
was not a party. Nor was he a ‘person against whom the
interception was directed’ . . . . [T]he government’s wiretap
application listed eight ‘Target Subjects’ for monitoring, none
of whom were [defendant].”). Indeed, the District Court in this
case surveyed the case law, as well as the legislative history of
Title III, and suggested that the better reading of Title III allows
12
standing for surveillance targets. These courts recognize a gap
where the Supreme Court in Alderman discussed in dicta, but
did not describe, the Fourth Amendment standards that it
attributed to Congress’s enactment of Title III.
Critically, this Court has never itself directly decided
whether targets of surveillance have standing as such under
Title III’s “aggrieved person” definition. In United States v.
Bellosi, upon which Appellants rely in their reply, we discussed
Alderman’s citation of the language in Jones v. United States
referring to “one against whom surveillance was directed” as
one of the Fourth Amendment standing principles with which
Section 2510(11) was “consistent.” 501 F.2d 833, 842 n.22
(D.C. Cir. 1974). But in that case, “the Government d[id] not
allege before us that any of the appellees d[id] not fit within the
statutory definition of an ‘aggrieved person,’” making this
discussion unnecessary for the outcome. See id. at 842. In In
re Evans, witnesses before a grand jury sought disclosure of
surveillance based on “their belief that wiretapping and
electronic surveillance had been directed against them and that
the grand jury’s subpoenas and questions were the fruit of that
wiretap.” 452 F.2d 1239, 1242 (D.C. Cir. 1971). The issue
was whether the parties’ status as grand jury witnesses afforded
standing for them to seek disclosure of surveillance, not
whether that standing turned on the witnesses being “targets”
instead of actual interceptees. In United States v. Williams, this
Court stated that to have standing to challenge surveillance,
“the accused must show that it was directed at Him, that the
Government intercepted His conversations or that the
wiretapped communications occurred at least partly on His
premises.” 580 F.2d 578, 583 (D.C. Cir. 1978). But this
opinion did not explain what “directed at Him” means any
more than the statute elucidates “person against whom the
interception was directed.” Nor did the Court state whether the
defendants were listed targets of the surveillance, the essential
13
fact underlying Appellants’ theory here. Finally, in United
States v. Scurry, we did not reach the question of target
standing under Title III, as the wiretaps at issue in that case
were challenged by the owners of the tapped phones. See 821
F.3d 1, 6 (D.C. Cir. 2016).
As it has never been necessary for this Court to directly
determine whether a person named as the target of a wiretap
application or order is an “aggrieved person” under Section
2510(11) with standing to suppress evidence derived from the
surveillance in question, such suggestions from our cases
touching on this issue are mere dicta.
Our survey of the status of the law on target standing under
Title III resolves the Strickland question before us. The inquiry
for deficiency looks at performance “as of the time of counsel’s
conduct” and accordingly does not require counsel to propound
vanguard arguments to meet the bare minimum required by the
Sixth Amendment. See Maryland v. Kulbicki, 136 S. Ct. 2, 4
(2015) (holding that counsel is not “constitutionally required to
predict” changes in law). Counsel may decide how to
“dedicat[e] their time and focus” in preparing a defense, and
courts cannot second-guess these priorities. Id. We note that
there is no evidence in the record that counsel were ill-prepared
or failed to research the law on this issue. Absent that, and in
light of the deeply unsettled law on the question of standing,
trial counsel did not perform below the constitutional standard
in electing not to challenge the Truck Bug, and appellate
counsel was similarly not deficient in declining to raise the
issue on appeal.
We do not reach Appellants’ purported prejudice with
respect to the Truck Bug evidence because counsel was not
deficient for failing to challenge it.
14
II.
The same cannot be said, however, for counsel’s
performance with respect to Agent Bevington’s testimony.
Given the state of the law, as well as the District Court’s
direction on the issue, counsel performed below the
constitutional standard when they failed to challenge specific
instances of Bevington’s impermissible lay opinion testimony,
at trial and on appeal.
In Hampton, we explained that consistent with Federal
Rule of Evidence 701, a case agent may only testify about
“interpretations” of recorded statements of defendants if he
“identifie[s] the objective bases for his opinion” such that the
jury can assess his testimony and that testimony is helpful to
the jury, rather than merely “tell[ing] it in conclusory fashion
what it should find.” 718 F.3d at 981 (quotation marks
omitted). Interpretations based on “knowledge of the entire
investigation” are not permissible lay opinion testimony, since
“the jury ha[s] no way of verifying his inferences or of
independently reaching its own interpretations” of any
recordings not before them. Id. at 983. Rule 701 accordingly
requires both that the witness identify and the jury have access
to the bases for the witness’s opinion and that the witness
refrain from merely directing the jury to draw certain
inferences on those bases.
In this case, it is clear that counsel performed deficiently
in failing to challenge lay opinion testimony by Bevington that
violated Rule 701. Counsel initially objected to the testimony
that Bevington was likely to offer before the witness took the
stand, and the District Court directed counsel that it would be
amenable to objections of that nature, should counsel object
“line by line” to any problematic testimony. See Trial Tr. 8:20,
10:11-13 (Feb. 19, 2008, Afternoon Sess.). The District Court
15
explained its “inbred dislike of having a government agent
trying to tell the jury what a tape means” and its underlying
concern about “how [the case agent is] going to have a better
sense that a hair dryer means drugs than I would . . . . If the
jury doesn’t listen to the tapes and agree with you, Officer
Bevington isn’t going to make one bit of difference.” Id. at
10:1; 9:5-7; 12-13. Despite the District Court’s direction,
counsel did not renew the objection when Bevington testified
about his interpretations of conversations recorded by the
Truck Bug and wiretap. The District Court’s instruction that
such objections were necessary – and would likely be sustained
– was clear, as was the requirement of Rule 701 on which the
objections were based. While we explained this rule in the
Hampton decision after Appellants’ case was tried, counsel had
every reason to revive their objections contemporaneously as
directed during trial based on the plain strictures of the Federal
Rules of Evidence. Prior to trial, the Advisory Committee
Notes accompanying the 2000 Amendments already stated that
“code word[]” opinions are not the proper subject of lay
opinion testimony pursuant to Rule 701. See Fed. R. Evid. 701
Advisory Committee’s Note to 2000 amendment. Thus, trial
counsel was deficient for not raising the issue, and appellate
counsel should have challenged this testimony on direct appeal.
Without objection from Appellants’ counsel, Bevington
testified several times about the meaning of certain words and
phrases used by Appellants and their associates. Bevington
told the jury his interpretation of terms like “Sister Sister
Magazine” and “information” – commonplace terms that made
little sense in the context of the group’s conversations. The
intended meaning of Appellants and their associates in these
conversations was for the jury itself to determine, without the
guiding directives of a government witness whose
interpretation was based on the entirety of the investigation,
information not available to jurors. Bevington’s translations of
16
everyday discussions – like the references in Activation 2093
to an apartment being cleaned out – similarly explained for the
jury what they properly should have been left to interpret for
themselves.
Of course, not every explanation about terms used in the
surveillance recordings was problematic. Experts may testify
under Rule 702 about generic slang language with which a jury
may not be familiar. In fact, in Appellants’ direct appeal, this
Court held that it was harmless error for the prosecution to
present Bevington’s testimony about the meaning of slang
terms “such as ‘water’ (PCP), ‘boat’ (marijuana laced with
PCP), ‘16th Street’ (16 ounces), and ‘32nd Street’ (32 ounces)”
without first qualifying Bevington as an expert under Rule 702
because he would have so qualified as a result of his significant
experience investigating drug crimes for the FBI. See Direct
Appeal, 681 F.3d at 422. Bevington also described the use of
cigarettes dipped in PCP to offer customers samples of the
product to explain the discussion in Truck Activation 91, an
acceptable line of expert testimony because it was based on
specialized training and assisted the jury in understanding a
tool of the drug trade with which it might not otherwise be
familiar. Bevington’s opinion testimony about generic slang
terms was well within the scope of his expertise as a field agent
with the FBI – which is why, on direct appeal, this Court
concluded that any failure to qualify Bevington as an expert
was harmless. See id. This testimony, and other unchallenged
portions of Bevington’s presentation, were appropriate parts of
the Government’s case against Appellants.
III.
Having concluded that Appellants’ counsel performed
below the constitutional standard when they failed to renew
their challenges to Bevington’s lay opinion testimony, we now
17
consider whether Appellants were prejudiced by this
deficiency. With Bevington’s remaining permissible
testimony, the Truck Bug evidence, and the significant
evidence not challenged here, we have no doubt that the jury
would have convicted Appellants even absent the problematic
testimony by Bevington.
We note first that the uncontroverted recordings include
many exchanges in which Glover and Price arranged to meet
with Suggs. In call after call – which the District Court
painstakingly inventoried in its consideration of Appellants’
habeas petitions – Appellants made plans to get together with
Suggs. The frequency of the meetings, and the single-minded
emphasis on Appellants’ need to receive something from
Suggs, make these recordings strong circumstantial evidence
that Appellants were engaged with Suggs in the distribution of
unlawful substances. That Price and Suggs aborted a planned
meeting when they suspected that they were being followed by
law enforcement vehicles cements such an inference.
The Truck Bug evidence also carries significant weight in
the case against Appellants. As described in the factual
background above, the Truck Bug recordings submitted against
both Glover and Price linked Appellants to specific exchanges.
The Truck Bug evidence linked Glover to a 16-ounce quantity
of PCP and Price to a gallon. For both Appellants, the Truck
Bug evidence also demonstrated the exchange of money owed
between Appellants and Lonnell Glover and Suggs. These
connections provided significant circumstantial evidence of
Appellants’ involvement in the PCP conspiracy.
Finally, the pervasive physical evidence in the homes of
the Glover associates linked the group to the PCP, as did the
controlled buys conducted by law enforcement in the course of
the investigation. For Glover in particular, the drugs and drug
18
paraphernalia recovered when his home was searched was
compelling evidence against him.
In contrast, the weight of Bevington’s inadmissible lay
opinion testimony was minimal. Bevington’s interpretations
were primarily used to buttress the prosecution’s argument that
the vague, guarded terms sometimes used by Appellants and
others in fact referenced PCP. But the many unchallenged
conversations from the Suggs wiretap linked Appellants to
their co-conspirators, and to Suggs in particular, and Truck Bug
recordings had separately established the connection between
Appellants and the drug trade, as did the controlled buys and
physical evidence, including PCP, recovered from Appellants’
constant associates.
Given the quantity of evidence against Appellants and the
minimal impact of the testimony challenged here, we see no
prejudice despite counsel’s deficiency in failing to challenge
the improper lay opinion testimony by Agent Bevington.
Absent prejudice, there is no Sixth Amendment violation.
Strickland, 466 U.S. at 691-92.
***
For the foregoing reasons, we affirm.