United States v. Luis Ayala-Vieyra

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0034n.06
Case No. 21-1177
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Jan 21, 2022
UNITED STATES OF AMERICA,
) DEBORAH S. HUNT, Clerk
)
Plaintiff - Appellee,
)
)
v. ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
)
LUIS AYALA-VIEYRA, WESTERN DISTRICT OF MICHIGAN
)
)
Defendant - Appellant.
)
BEFORE: BOGGS, GIBBONS, and NALBANDIAN, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Luis Ayala-Vieyra was convicted by a jury for
conspiracy to distribute and possess with intent to distribute cocaine and distribution of cocaine.
On appeal, he argues the district court erred in denying his motions to suppress wiretaps, allowing
jurors to be masked during voir dire, permitting phone transcripts to be read to the jury, failing to
exclude expert testimony, applying a gun enhancement at his sentencing, and failing to credit him
for acceptance of responsibility. We disagree and affirm the district court.
I.
We begin with a discussion of the relevant wiretap applications, before turning to Ayala-
Vieyra’s motions to suppress, trial, and sentencing.
No. 21-1177, United States v. Luis Ayala-Vieyra
A.
In 2018 and 2019, the Drug Enforcement Administration (“DEA”) investigated Gaston
Silva for cocaine trafficking in Grand Rapids, Michigan. This investigation included applications
for numerous wiretaps, eventually leading to a wiretap of Ayala-Vieyra’s phone.
In April 2019, the government applied for interception of Gaston Silva’s, Tony Silva’s,
and Teodulo Zepeda’s phones, after physical and electronic surveillance indicated they were
involved in distributing narcotics. The affiant described why traditional investigative techniques
would not allow the government to fully complete its investigation. For example, individuals had
thwarted physical surveillance, execution of search warrants too early would lead to detection of
the investigation and result in destruction of evidence, and video surveillance was of limited use
against a mobile drug organization. The interception of Gaston Silva’s phone also helped
investigators identify Luis Ayala-Vieyra and his brother, Inocencio Ayala-Vieyra, as drug
suppliers. The district court authorized the wiretaps.
In May 2019, the government sought continued interception of Tony Silva’s and Zepeda’s
phones and new interception of Inocencio Ayala-Vieyra’s phone. For reasons similar to those
explained in the April application, the affiant detailed why the wiretaps were necessary to fully
investigate the numerous drug organizations. The district court authorized the wiretaps.
In July 2019, the government sought to continue interception of Inocencio Ayala-Vieyra’s
phone and to initiate interception of Luis Ayala-Vieyra’s phone. Investigators identified Luis
Ayala-Vieyra as a supplier for Inocencio, but were unable to identify the source of his supply.
Again, the affiant described why the wiretaps were necessary. For example, a confidential
informant provided some information, but was unable to provide information on the Ayala-
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No. 21-1177, United States v. Luis Ayala-Vieyra
Vieyras’ current narcotics activity. Surveillance and trash pulls were unsuccessful. The district
court authorized the wiretaps.
B.
Luis Ayala-Vieyra was indicted for conspiracy to distribute and to possess with intent to
distribute cocaine, as well as distribution of cocaine. He moved to suppress the wiretap evidence,
arguing the applications for the wiretaps failed to establish probable cause and necessity. The
district court denied the motions.
Ayala-Vieyra also moved for an order requiring the preparation of transcripts of ex parte
hearings before the issuing judge on the wiretap applications. The district court denied the motions
after the government affirmed it had not presented any additional evidence in those ex parte
hearings.
C.
Ayala-Vieyra proceeded to trial on September 21, 2020. Because his trial took place during
the COVID-19 pandemic, the district court took safety precautions including allowing jurors to
wear face masks. Ayala-Vieyra objected, with his counsel arguing he did not know whether he
could “adequately assess credibility of anyone wearing a mask.” DE 210, Trial Tr., Page ID 1232.
The district court overruled the objection, noting that the masks did not create a Sixth Amendment
issue as the jurors were not witnesses and recognizing that jurors could be uncomfortable with
unmasked fellow jurors given the health concerns presented by the pandemic.
During trial, the government proposed calling two people from its office to read to the jury
transcripts that the parties agreed to admit. Ayala-Vieyra objected, arguing he thought “the best
way is to have the jury read them.” Id. at 1312. The district court overruled the objection,
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No. 21-1177, United States v. Luis Ayala-Vieyra
explaining that it found no prejudice and would allow the government to decide how to present its
evidence.
The government also called DEA Special Agent Thomas Burns. Before trial, Ayala-Vieyra
moved to exclude Burns’s expert testimony under Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), arguing that drug experts do not offer a
reliable methodology nor provide testimony beyond the common knowledge of the average juror.
The district court heard argument on the motion during the pretrial conference. The defense argued
that Burns’s general testimony that drug dealers talk in code was within the common knowledge
of the jury. The government responded that Burns’s testimony on how drug dealers use an “entire
ad-hoc language” to avoid police would be helpful, as not all jurors were familiar with the practice.
DE 129, Pretrial Tr., Page ID 696. The district court denied Ayala-Vieyra’s motion, explaining:
I appreciate the fact that the language used in these phone calls may be common to
practitioners both on the prosecution and defense side and members of the judiciary,
but to say that your average juror in the Western District of Michigan will
understand code—use or code words and lingo in drug—in the drug trade, I think
is a real stretch.
Id. at 697. After a three-day trial, the jury convicted Ayala-Vieyra on all counts.
D.
In Ayala-Vieyra’s Presentence Investigation Report (“PSR”), the probation office
calculated an offense level of 32 and a criminal history category of I. The recommended
Guidelines range was 121 to 151 months of imprisonment. Ayala-Vieyra raised numerous
objections.
Ayala-Vieyra objected to receiving a two-level enhancement for possession of a firearm in
connection with drug trafficking activities. He argued the gun found in his residence belonged
and was registered to his wife and there was no evidence he stored drugs in proximity to the gun.
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No. 21-1177, United States v. Luis Ayala-Vieyra
The district court overruled his objection, finding that Ayala-Vieyra stored drugs in his home and
that the gun could be jointly possessed with his wife.
Ayala-Vieyra also objected to the absence of a reduction in his offense level calculation
for acceptance of responsibility. The district court overruled the objection, explaining that Ayala-
Vieyra went to trial and contested each element of the offense. Finding the drug weight calculation
should be four levels lower than the PSR recommendation, the district court calculated a
Guidelines range of 78 to 97 months in prison and sentenced Ayala-Vieyra to 78 months’
imprisonment.
II.
We discuss Ayala-Vieyra’s arguments in chronological order, beginning with his pretrial
motions to suppress the wiretap evidence.
A.
When reviewing the district court’s decision to suppress a wiretap under 18 U.S.C. § 2518,
we review findings of fact for clear error and questions of law de novo. United States v. Rice, 478
F.3d 704, 709 (6th Cir. 2007). “Generally, a district court’s finding that the requirements of
§ 2518(1)(c) [the necessity provision] have been met are afforded ‘considerable discretion.’”
United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002) (quoting United States v. Landmesser,
553 F.2d 17, 20 (6th Cir. 1977)).
Ayala-Vieyra argues the district court should have granted his motions to suppress the
wiretap evidence because the government failed to establish probable cause or necessity in the
wiretap applications. He also contends the district court should have provided him with transcripts
of ex parte wiretap hearings.
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No. 21-1177, United States v. Luis Ayala-Vieyra
1.
A wiretap application must establish probable cause “that an individual is committing, has
committed, or is about to commit a particular offense” and “that particular communications
concerning that offense will be obtained through such interception.” 18 U.S.C. § 2518(3)(a)–(b).
Probable cause does not require “certainty” but only a “fair probability” that is greater than mere
suspicion. United States v. Alfano, 838 F.2d 158, 162 (6th Cir. 1988).
Ayala-Vieyra argues that no probable cause supported the wiretaps because the phone
conversations described in the affidavits did not allude to contraband and because the affiant made
unsupported conclusions. However, the affidavit explains how seemingly innocuous
conversations are coded, based on the affiant’s general experience as a DEA agent and specific
experience with the investigation.
For example, texts were intercepted between Luis Ayala-Vieyra and Inocencio Ayala-
Vieyra referring to a “key.” The affiant explained that “key” is a common code reference for a
kilogram of narcotics. This common shorthand, combined with the fact that cocaine was later
found in Inocencio’s car, supported the affiant’s belief that the brothers were discussing narcotics
in this conversation. While Ayala-Vieyra may suggest alternative ways of reading the messages,
“the probable cause requirement does not require that every contrary hypothesis be excluded.”
Alfano, 838 F.2d at 162. Further, while the issuing judge should not simply accept an officer’s
speculation, the district court is permitted to rely on an officer’s training and experience in
weighing the overall evaluation of probable cause. United States v. Jackson, 454 F. App’x 435,
439 (6th Cir. 2011).
The wiretap applications provide extensive detail on various conversations and
corresponding surveillance that led investigators to conclude the targeted subjects were involved
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No. 21-1177, United States v. Luis Ayala-Vieyra
in drug trafficking. Looking at the totality of the circumstances, this was sufficient to establish
probable cause. See Alfano, 838 F.2d at 161; United States v. Young, 847 F.3d 328, 343–44 (6th
Cir. 2017).
2.
Ayala-Vieyra also challenges the necessity of the wiretaps. An application for a wiretap
under Title III must contain a full and complete statement of other investigative procedures that
have been tried and failed or why they would be unlikely to succeed or are too dangerous. Rice,
478 F.3d at 709–10. This requirement “protects against the impermissible use of a wiretap as the
‘initial step in [a] criminal investigation’” and ensures that a wiretap is not used when traditional
investigative techniques would suffice. Id. at 710 (quoting United States v. Giordano, 416 U.S.
505, 515 (1974)). However, “the government is not required to prove that every other conceivable
method has been tried and failed or that all avenues of investigation have been exhausted.” Id.(citation omitted). The investigators need only “give serious consideration to the non-wiretap
techniques prior to applying for wiretap authority.” Id. (citation omitted).
Ayala-Vieyra argues that “the affidavit dips into boilerplate” showing “the government’s
lack of effort in pursuing options” other than wiretaps. CA6 R. 19, Appellant Br., at 27, 30.
Boilerplate language without any statements about the specific case at hand is insufficient to
support a wiretap. Landmesser, 553 F.2d at 20. However, an affidavit is not ipso facto insufficient
if it uses some generalized language, as long as it also includes circumstances specific to the
present case. See United States v. Wren, 528 F. App’x 500, 504–05 (6th Cir. 2013). The affidavits
in this case use some overlapping language that apply to most narcotics investigations but the
affiant also provided details unique to Ayala-Vieyra.
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No. 21-1177, United States v. Luis Ayala-Vieyra
For example, investigators conducted extensive physical surveillance of Ayala-Vieyra and
tracked him visiting numerous residences, but they had insufficient information to determine
which visits were drug related. A confidential informant provided some information about the
Ayala-Vieyra brothers but could not contact them directly or provide any current information about
their narcotics transactions. Surveillance also failed to identify narcotics customers. Given these
circumstances specific to Ayala-Vieyra, the affidavit is not impermissibly boilerplate. See Wren,
528 F. App’x at 505.
Ayala-Vieyra argues the government could have done more. However, exhaustion is not
required, and “the government need not prove the impossibility of other means of obtaining
information.” Stewart, 306 F.3d at 305. Therefore, the district court did not err in finding the
necessity requirement satisfied and denying Ayala-Vieyra’s motions to suppress. See Young, 847
F.3d at 344–45; United States v. Asker, 676 F. App’x 447, 459 (6th Cir. 2017).
3.
Ayala-Vieyra also argues the district court erred in denying his motions to order the ex
parte wiretap hearings transcribed and disclosed. We review “decisions of the district court to seal
court documents or records, as well as orders lifting or modifying a seal, for abuse of discretion.”
Rudd Equip. Co., Inc. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016).
Under 18 U.S.C. § 2518(8)(b), wiretap applications are sealed and “shall be disclosed only
upon a showing of good cause.” Ayala-Vieyra filed two motions seeking transcripts of ex parte
hearings for wiretap applications, arguing that “[r]eview of the transcripts of the hearings are
required in order to determine whether the Court had all of the information considered when the
Title III applications were considered.” DE 69, Mot., Page ID 304–07; DE 59, Mot., Page ID 274–
75. The government responded that there was no good cause to unseal the transcripts as it affirmed
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No. 21-1177, United States v. Luis Ayala-Vieyra
that “it presented no additional evidence during those hearings that was not included in the written
applications, which have already been disclosed.” DE 73, Resp., Page ID 311–12; DE 63, Resp.,
Page ID 279–80. Accepting the government’s affirmation, the district court found no good cause
to unseal the transcript where Ayala-Vieyra had the wiretap applications and supporting affidavits.
Ayala-Vieyra argues that the district court should not have accepted the government’s
affirmation but cites no authority that this is improper, particularly here where the district court
only considered the disclosed documents to find probable cause and necessity for the wiretaps.
As the wiretap applications and supporting affidavits were disclosed to the defense, the district
court considered only those documents in ruling on the motions to suppress, and the government
affirmed that no further evidence was provided at the hearings, the district court did not abuse its
discretion in denying Ayala-Vieyra’s motions for ex parte hearing transcripts.
B.
Ayala-Vieyra raises numerous issues with his trial: the jurors were masked during voir
dire; phone transcripts were read to the jury; and Burns testified as an expert on drug trafficking
practices. We review a district court’s manner of conducting voir dire, rulings on evidentiary
challenges, and admission of expert testimony for abuse of discretion. See United States v. Tocco,
200 F.3d 401, 411, 418 (6th Cir. 2000); United States v. Tragas, 727 F.3d 610, 614 (6th Cir. 2013).
1.
During voir dire, defense counsel objected to prospective jurors wearing masks, claiming
he could not adequately assess credibility. The district court overruled the objection, noting that
jurors were not witnesses implicating the Sixth Amendment and that the health circumstances of
the COVID-19 pandemic warranted masking.
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No. 21-1177, United States v. Luis Ayala-Vieyra
On appeal, Ayala-Vieyra argues this was error as “[f]acial expressions tell much about
credibility” and therefore implicate the Fifth and Sixth Amendments. CA6 R. 19, Appellant Br.,
at 62. He contends that potential jurors could have used clear face masks to balance the need to
minimize health risks with that of seeing jurors’ faces. First, defense counsel did not suggest face
shields to the district court despite “the ease with which” Ayala-Vieyra now says they could have
been used. CA6 R. 19, Appellant Br., at 61. Second, Ayala-Vieyra cites no authority that seeing
the bottom of the jurors’ faces is constitutionally required. Courts have consistently held to the
contrary.1
The district court did not abuse its discretion in having jurors masked in voir dire during a
global pandemic.
2.
Ayala-Vieyra also argues that the district court erred in allowing government personnel to
read transcripts of phone exchanges aloud to the jury. At trial, defense counsel objected to the
government reading transcripts out loud because of an unnamed “danger.” DE 210, Trial Tr., Page
ID 1312. He asked the court to publish the transcripts for the jury to read themselves. The
government responded that it would be calling two people from its office, a legal assistant and a
victim/witness coordinator, to read the parts aloud without any “dramatic intonation” or “ad lib.”
Id. at 1313. The district court overruled Ayala-Vieyra’s objection, noting that the government was
permitted to decide how to effectively present its evidence and there was no “prejudice to the
defendant evident based on what [the court] heard so far.” Id. at 1313–14.
1
See United States v. Watkins, No. 18-CR-32-A, 2021 WL 3732298, at *7 (W.D.N.Y. Aug. 24, 2021); United States
v. Thompson, No. 19-1610, 2021 WL 2402203, at *5 (D.N.M. June 11, 2021); United States v. Tagliaferro, 531 F.
Supp. 3d 844, 851 (S.D.N.Y. 2021); United States v. Robertson, No. 17-CR-02949, 2020 WL 6701874, at *2 (D.N.M.
Nov. 13, 2020); United States v. James, No. CR-19-08019-001, 2020 WL 6081501, at *3 (D. Ariz. Oct. 15, 2020);
United States v. Trimarco, No. 17-CR-583, 2020 WL 5211051, at *5 (E.D.N.Y. Sept. 1, 2020); United States v.
Crittenden, No. 4:20-CR-7, 2020 WL 4917733, at *8 (M.D. Ga. Aug. 21, 2020).
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No. 21-1177, United States v. Luis Ayala-Vieyra
“[T]here is nothing inherently problematic about reading” properly admitted transcripts.
Tragas, 727 F.3d at 614. While a “staged performance or re-enactment” that “strayed from the
direct evidence” would be problematic, Ayala-Vieyra points to no portion of the reading that was
improper. Id. Rather, Ayala-Vieyra argues that the reading alone bolstered the evidence. But
there is “no support for the proposition that admissible documentary evidence somehow becomes
more credible if the prosecutor reads it aloud.” Id. at 615. Therefore, the district court did not
abuse its discretion in allowing government personnel to read the stipulated-to transcripts to the
jury.
3.
Ayala-Vieyra contends that Burns provided improper expert testimony because it was
irrelevant and unreliable. At trial, Burns testified that law enforcement often see code words used
in phone calls and texts when suspects discuss drugs.
First, Ayala-Vieyra argues this testimony offers nothing beyond the knowledge of an
average juror. We “regularly allow[] qualified law enforcement personnel to testify on
characteristics of criminal activity, as long as appropriate cautionary instructions are given, since
knowledge of such activity is generally beyond the understanding of the average layman.” United
States v. Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004) (citation omitted). As knowledge of the
drug trafficking trade is generally beyond the knowledge of the average juror, Ayala-Vieyra’s
argument is without merit. See id.; United States v. Assfy, No. 20-1630, 2021 WL 2935359, at *3
(6th Cir. July 13, 2021).
Second, Ayala-Vieyra argues that this type of testimony on drug trafficking practices is
unreliable because it relies on anecdotes rather than methodology. “Rule 702 affords the district
court ‘considerable leeway in deciding in a particular case how to go about determining whether
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No. 21-1177, United States v. Luis Ayala-Vieyra
particular expert testimony is reliable.’” United States v. Simpson, 845 F. App’x 403, 409 (6th
Cir. 2021) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). A DEA agent’s
extensive experience is a permissible basis to find expert testimony reliable. See id. at 411; United
States v. Johnson, 488 F.3d 690, 698 (6th Cir. 2007); United States v. List, 200 F. App’x 535, 545
(6th Cir. 2006). Therefore, the district court did not abuse its discretion in allowing Burns to testify
as an expert on drug trafficking practices.
C.
Turning to sentencing, Ayala-Vieyra raises two procedural errors: (1) the application of a
firearm enhancement and (2) the failure to credit him for acceptance of responsibility.
1.
A district court’s finding that a defendant possessed a firearm for purposes of enhancement
under U.S.S.G. §2D1.1 is reviewed for clear error. United States v. Elder, 90 F.3d 1110, 1133 (6th
Cir. 1996). In applying the firearm enhancement under §2D1.1(b)(1), the government must show
“‘by a preponderance of the evidence that the defendant possessed the firearm’ while committing
a drug trafficking offense.” United States v. Davidson, 409 F.3d 304, 312 (6th Cir. 2005) (citation
omitted). “A defendant constructively possesses a firearm if he knowingly ‘has ownership, or
dominion or control over the firearm itself, or dominion over the premises where the firearm is
located.’” United States v. Brown, 856 F. App’x 36, 40 (6th Cir. 2021) (quoting United States v.
Galvan, 453 F.3d 738, 742 (6th Cir. 2006) (cleaned up)). We have consistently held that
constructive possession can be shown where contraband is found in the defendant’s living space.
See id.; United States v. Malone, 308 F. App’x 949, 952–53 (6th Cir. 2009) (collecting cases).
The PSR recommended a two-level enhancement under U.S.S.G. §2D1.1(b)(1). Ayala-
Vieyra objected, arguing the gun found in his residence belonged and was registered to his wife
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No. 21-1177, United States v. Luis Ayala-Vieyra
and there was no evidence he stored drugs in proximity to the gun. The district court overruled
his objection, finding that Ayala-Vieyra “stored a significant amount of drugs, which was the
subject matter of this conspiracy, at his home, which he shared with his wife and, of course, a
firearm can be jointly possessed by another individual.” DE 213, Sentencing Tr., Page ID 1619–
20.
While it is undisputed that the gun found in Ayala-Vieyra’s home was registered to his
wife, §2D1.1(b)(1) only requires possession, not ownership and “the law recognizes joint
possession.” United States v. Wheaton, 517 F.3d 350, 367 (6th Cir. 2008). As the gun was found
in Ayala-Vieyra’s living space, it was not clearly erroneous for the district court to determine that
Ayala-Vieyra had constructive possession of the gun. See id.; Brown, 856 F. App’x at 40–41;
United States v. Akins, 422 F. App’x 496, 497 (6th Cir. 2011).
Still Ayala-Vieyra argues that there was insufficient evidence that he kept and sold drugs
at his home where the gun was found. Law enforcement did not find drugs in the search of Ayala-
Vieyra’s home, but there was trial testimony that a police dog detected the odor of drugs in the
home, that Gaston Silva picked up a kilogram of cocaine at the home, and that officers observed
individuals visit the home and then found cocaine in their possession. In light of the evidence that
drug transactions did occur at the home, it was not clearly erroneous for the district court to find
the firearm enhancement warranted. See Wheaton, 517 F.3d at 368; Akins, 422 F. App’x at 497.
2.
We review a district court’s refusal to reduce a sentence based on acceptance of
responsibility for clear error as the “sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility.” United States v. Theunick, 651 F.3d 578, 588 (6th Cir.
2011) (quoting U.S.S.G. §3E1.1 cmt. n.5). “In rare situations a defendant may clearly demonstrate
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an acceptance of responsibility for his criminal conduct even though he exercises his constitutional
right to a trial.” Id. (quoting U.S.S.G. §3E1.1 cmt. n.2). A defendant going to trial to preserve an
issue that does not relate to factual guilt could be an example. Id.
Ayala-Vieyra objected to the absence of a reduction for acceptance of responsibility in his
PSR. He argues he only proceeded to trial to challenge the drug quantity and had previously met
with the government to express remorse for his conduct. The district court overruled Ayala-
Vieyra’s objection, explaining that Ayala-Vieyra went to trial and contested all elements of the
offense before the jury. The court clarified: “This trial was not just about weight, in fact, weight
was not an element of the offense before the jury.” DE 213, Sentencing Tr., Page ID 1620.
At trial, Ayala-Vieyra argued to the jury that he was not guilty. He also moved for a
judgment of acquittal, contending there was no evidence he conspired to sell or sold drugs. And
contrary to Ayala-Vieyra’s argument, drug weight was not an issue for the jury, but rather a matter
for sentencing. Therefore, the district court did not err in declining to credit Ayala-Vieyra with
acceptance of responsibility. See Theunick, 651 F.3d at 588; United States v. Woods, 323 F. App’x
437, 443 (6th Cir. 2009); United States v. Hardy, 302 F. App’x 420, 423 (6th Cir. 2008).
III.
The district court did not err in denying Ayala-Vieyra’s motions to suppress wiretaps. Nor
did the district court err in denying Ayala-Vieyra’s request for transcripts of ex parte wiretap
hearings where the government affirmed that no undisclosed evidence was presented at those
hearings. As for trial, the district court did not err in allowing jurors to remain masked during voir
dire, permitting phone transcripts to be read to the jury, or in allowing Burns to testify as an expert.
At sentencing, the district court did not err in applying the firearm enhancement and denying credit
for acceptance of responsibility. Therefore, we affirm the district court.
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