United States v. Barnett

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
WILLIAM BARNETT, a/k/a Big Pork,  No. 02-4561
a/k/a Pork, a/k/a Porky, a/k/a
William Clagett,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4732
TYRELL K. LEE,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-01-58)
Submitted: March 31, 2003
Decided: April 11, 2003
Before WILKINSON and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. BARNETT
COUNSEL
L. Barrett Boss, ASBILL, MOFFITT & BOSS, Washington, D.C.;
Paul S. Rosenzweig, THE HERITAGE FOUNDATION, Washington,
D.C.; Eric M. Glass, Savage, Maryland, for Appellants. Thomas M.
DiBiagio, United States Attorney, James M. Trusty, Assistant United
States Attorney, Mythili Raman, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In these consolidated appeals, William Barnett (No. 02-4561) and
Tyrell Lee (No. 02-4732) appeal their convictions and sentences for
conspiracy to distribute and possess with intent to distribute more
than five kilograms of cocaine and more than fifty grams of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), 846. Barnett
was also convicted of two counts of being a felon in unlawful posses-
sion of a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g)(1) (2000). On July 9, 2002, Barnett was sentenced to a man-
datory minimum of twenty years’ imprisonment and ordered to forfeit
assets valued at $175,000. Lee was convicted pursuant to his guilty
plea and sentenced to 120 month’s imprisonment. For the reasons dis-
cussed below, we affirm their convictions and sentences.
I. BARNETT, No. 02-4561
A. Wiretap Evidence
Barnett contends that the district court erred in admitting evidence
obtained through the use of wiretaps and other means of electronic
surveillance because the Government failed to establish that it had
UNITED STATES v. BARNETT 3
exhausted ordinary investigation techniques before requesting autho-
rization for electronic surveillance. Further, he argues that the Goetz
affidavit omits material facts, in violation of the statute.
This court reviews de novo whether the applicant submitted a full
and complete statement of facts in compliance with 18 U.S.C.
§ 2518(1)(c) (2000), and reviews for an abuse of discretion the district
court’s decision whether the wiretap was necessary under the statute.
United States v. Brone, 792 F.2d 1504, 1506 (9th Cir. 1986).
The affidavit was exhaustive of the facts surrounding the investiga-
tion of the Adams drug organization. The Government set forth
numerous investigative techniques implemented during the investiga-
tion as of its date, November 22, 2000. Barnett has not made a suffi-
cient showing that the Government failed to meet the necessity
requirement under the wiretap statute.
Barnett argues that the Goetz affidavit omits material facts and
contains material misrepresentations, in violation of the statute, war-
ranting a hearing pursuant to Franks v. Delaware, 438 U.S. 154(1978). As Barnett has failed to show any evidence that the Govern-
ment knowingly or recklessly made material misrepresentations in the
Goetz affidavit, the district court did not exceed the bounds of defer-
ence accorded it by authorizing the electronic surveillance. See United
States v. Muldoon, 931 F.2d 282 (4th Cir. 1991).
B. Expert Testimony
Barnett also contends the district court abused its discretion by
allowing Special Agent Matthew Carbone to testify as an expert wit-
ness with regard to drug code language.
Federal courts have repeatedly found the interpretation of drug
codes a specialized body of knowledge appropriate for expert testi-
mony under Fed. R. Evid. 702 in drug trafficking cases. See United
States v. Ceballos, 302 F.3d 679, 686-87 (7th Cir. 2002), cert. denied,
123 S.Ct. 924 (2003); United States v. Rivera-Rosario, 300 F.3d 1, 17
(1st Cir. 2002); United States v. Garcia, 291 F.3d 127, 139 (2nd Cir.
2002); United States v. Hermanek, 289 F.3d 1076, 1096 (9th Cir.
4 UNITED STATES v. BARNETT
2002), cert. denied, ___ U.S. ___, 2003 WL 183256 (U.S. Feb. 24,
2003) (No. 02-8542); United States v. Watson, 260 F.3d 301, 307 (3d
Cir. 2001); United States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir.
1994). As Carbone was fully qualified to testify regarding drug codes
by his extensive experience in narcotics investigations, the district
court did not abuse its discretion in admitting him as an expert. See
United States v. Barnette, 211 F.3d 803, 816 (4th Cir. 2000).
Barnett contends that Carbone had no reliable basis for his testi-
mony regarding the drug code terms "sweet potato joints" and "caba-
ret." Under Rule 702, experts may only testify if: "(1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case." Barnett
argues that Carbone never adequately explained the method he used
to arrive at his interpretations of words which he had never encoun-
tered before. Because Barnett did not object to Carbone’s testimony
in pretrial motions or at trial with regard to the reliability or method-
ology of his expert testimony, this court reviews for plain error. Fed.
R. Crim. P. 52(b).
The district court conducted a full voir dire of Carbone, demon-
strating that his knowledge and experience in drug trafficking investi-
gations and drug "codes" was extensive. In addition, Carbone’s expert
testimony was corroborated by Adams’ explanation of the conversa-
tions in which he took part.
Barnett argues the Government improperly "bolstered" Adams’ tes-
timony with expert testimony by Carbone. However, the Government
properly compared Adams’ and Carbone’s testimony, as corrobora-
tion.
C. Admission of Prior Bad Acts
Barnett maintains that the district court improperly admitted certain
"prior bad acts" into evidence in violation of Fed. R. Evid. 404(b). He
specifically challenges the court’s admission of his 1991 prior convic-
tion for possession of cocaine with intent to distribute and the testi-
mony of John Simpson, a Maryland State Police Officer, who
executed a search warrant of Barnett’s home on April 5, 1990.
UNITED STATES v. BARNETT 5
Rule 404(b) forbids admission of prior bad acts evidence to show
later action in conformity therewith. Rule 404(b) provides for exclu-
sion of prior bad acts only if it is admitted to show character. It does
not require exclusion of such evidence offered to establish opportu-
nity, motive, intent, preparation, plan, knowledge, identity, or absence
of mistake. Fed. R. Evid. 404(b).
To be relevant under Rule 404(b), the evidence must be sufficiently
related to the charged offense. Powers, 59 F.3d at 1465. Evidence is
necessary when, considered in the light of other evidence available to
the government, it is an essential part of the crimes on trial, or when
it furnishes part of the context of the crime. United States v. Queen,
132 F.3d 991, 998 (4th Cir. 1997); Powers, 59 F.3d at 1466. Finally,
the evidence is reliable if it is sufficient to allow the jury to reason-
ably conclude that the act occurred and that the defendant was the
actor. Powers, 59 F.3d at 1467.
The evidence showed Barnett’s previous participation in drug dis-
tribution activities. Simpson testified that the evidence gathered dur-
ing the previous search in that case included a police scanner, a digital
scale, food storage containers and baggies used to hold cocaine, and
a lockbox containing $5740 in cash. The evidence also proved that
Barnett’s intent when he made coded phone calls was to deal cocaine.
Simpson’s testimony was reliable and highly probative, and the dis-
trict court did not abuse its discretion in admitting it. See United
States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996).
II. LEE, No. 02-4732
Lee appeals from his conviction and 120-month sentence imposed
pursuant to his guilty plea, for conspiracy to distribute and possess
with intent to distribute more than five kilograms of cocaine and more
than fifty grams of cocaine base. Lee contends that his guilty plea was
not knowingly and voluntarily made because there were many refer-
ences at his guilty plea hearing to the potential application of the
"safety valve" provision under the Sentencing Guidelines that he ulti-
mately did not receive.
The district court’s conclusion that Lee’s guilty plea was know-
ingly and voluntarily made was not plainly erroneous. See United
6 UNITED STATES v. BARNETT
States v. Martinez, 277 F.3d 517, 527 (4th Cir.), cert. denied, 123
S. Ct. 200 (2002).
We therefore affirm Barnett’s and Lee’s convictions and sentences.
We dispense with oral argument because the facts and legal conten-
tions have been adequately presented in the materials before the court.
AFFIRMED