United States v. Timothy R. Thomas

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 4, 2013 Decided December 27, 2013
Nos. 07-3135 & 07-3139
UNITED STATES OF AMERICA,
APPELLEE
v.
FREDERICK MILLER,
TIMOTHY R. THOMAS,
APPELLANTS
Appeals from the United States District Court
for the District of Columbia
(No. 04cr00379-02)
(No. 04cr00379-03)
Dennis M. Hart, appointed by the court, argued the cause
and filed the joint brief for appellant Frederick Miller.
David B. Smith, appointed by the court, argued the cause
and filed the joint brief for appellant Timothy R. Thomas.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne
Grealy Curt, and John K. Han, Assistant U.S. Attorneys. Mary
B. McCord, Assistant U.S. Attorney, entered an appearance.
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Before: GARLAND, Chief Judge, and ROGERS and
BROWN, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Frederick Miller, Gerald Eiland,
and Timothy R. Thomas appeal their convictions stemming from
a narcotics distribution scheme in Southeast, Washington, D.C.
between 1999 and 2004. They and six others were indicted, and
the district court conducted two trials. Miller and Thomas,
along with Corey Moore, were tried first, and this opinion
addresses Miller’s and Thomas’ challenges to their convictions.
Miller was also part of the second trial involving Eiland with
respect to the counts on which the jury hung at the first trial.
Today the court issues simultaneous opinions in these complex
cases addressing all of the challenges to the convictions.
Miller and Thomas challenge their convictions on multiple
grounds, including that the district court erred in denying their
motions to suppress the evidence obtained by the government
through wiretaps placed on Miller’s and Eiland’s cell phones.
This opinion incorporates the holding in United States v. Eiland,
Nos. 07-3131 & 11-3001, slip op. at 8–15 (D.C. Cir. Dec. 27,
2013), that the district court did not abuse its discretion in
denying the defense motions to suppress the wiretap evidence.
Miller and Thomas also contend that the district court erred in
permitting “overview” and lay opinion testimony by government
agents, and testimony of a jailhouse confidant about their co-
conspirators’ statements. Further, they contend the district court
erred in limiting the cross-examination of a key cooperating
government witness, and in denying Thomas’ motion for
judgment because there was insufficient evidence to convict him
of one of the communication facility counts and a corresponding
racketeering act. They contend as well that the district court
erred in allowing unredacted tape recordings and tape recordings
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of their phone calls not played at the trial to go to the jury, and
also impermissibly interfered with the jury’s deliberations by
responding to jury notes in a manner that instructed the jury
about the grand jury’s intent. In their reply brief, they contend
the responses improperly amended the superceding indictment.
They have withdrawn their Jencks/Brady challenge but contend
the cumulative effect of the district court’s errors requires
reversal of their convictions.
We hold that Miller’s and Thomas’ evidentiary challenges
and their contention regarding the submission of unplayed and
unredacted phone calls fail to demonstrate that reversal of their
convictions is warranted; such errors as occurred were harmless
for lack of substantial prejudice. We further hold that the
district court’s responses to jury notes impermissibly interfered
with the jury’s independent role as the finder of fact, and we
vacate the convictions on the tainted counts. The government
concedes that the district court erred in imposing Thomas’
sentences of life imprisonment in violation of Apprendi v. New
Jersey, 530 U.S. 466 (2000), and we vacate his life sentences for
narcotics conspiracy and RICO conspiracy. Accordingly, we
remand the case for resentencing and otherwise affirm the
judgments of conviction.
I.
In March 2003, a joint task force of the Federal Bureau of
Investigation (“FBI”) and the D.C. Metropolitan Police
Department began an investigation into a suspected narcotics
distribution operation in Southeast, Washington, D.C. As a
result of physical surveillance, use of cooperators, pen registers
and toll records, undercover drug purchases, and execution of
search warrants, the investigators suspected that Miller and
Eiland were partners in drug distribution with at least ten others,
among them Thomas. Upon obtaining judicial authorization of
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wiretaps, the investigators intercepted calls made on the cell
phones used by Miller and Eiland between February and June
2004.
The government’s evidence, as relevant here, showed that
Miller used several individuals as couriers of money and drugs.
Between October 2003 and January 2004, Miller recruited his
cousin Charles Brown to make five trips to Kansas City,
Missouri to carry money. Miller also recruited Brown to make
a similar trip to Los Angeles, California to carry money to
Robert Bryant, whom investigators suspected of supplying
Miller with PCP. On March 10, 2004, when Brown was
scheduled to go to Los Angeles for Miller, he was stopped at the
airport by Drug Enforcement Administration agents who seized
$30,775 in cash from his person. In April 2004, Miller again
recruited Brown, arranging for a package of heroin to be sent to
Brown’s residence; the package was intercepted by law
enforcement officials who arranged a controlled delivery of the
package to Brown’s residence.
Tyrone Thomas (hereinafter “Tyrone,” and no relation to
Timothy R. Thomas) also acted as a courier for Miller. He was
introduced to Miller by Thomas in 2000. In May or June 2003,
Tyrone drove from Atlanta, Georgia to Los Angeles to meet
with Miller and Bryant, who were planning to purchase PCP.
After Tyrone returned to Atlanta, Bryant sent him a package of
PCP to take to Miller in the District of Columbia. In March
2004, Tyrone transported a batch of “no good” PCP from the
District of Columbia to Bryant in Kansas City. In March 2004
Miller also recruited Tyrone to act as a courier in regard to a
purchase of four kilograms of powder cocaine in Phoenix,
Arizona. Tyrone drove from Atlanta to meet with Miller and
Thomas to discuss the new venture. Thomas then drove Tyrone
to Eiland’s apartment in Alexandria, Virginia, where Eiland
instructed Tyrone to take $50,000 to Phoenix where he would
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meet Eiland. In Phoenix, Eiland retrieved the funds and
purchased four kilograms of powder cocaine, and then gave the
drugs to Tyrone to transport to the District of Columbia. Wary
of law enforcement, Tyrone put the drugs in a bag that he
checked onto a Greyhound bus bound for Richmond, Virginia.
When he arrived in Richmond three days later, Tyrone learned
the bag had not arrived. The bag arrived two days later, on
March 23, 2004, and Tyrone called to let Miller, Eiland, and
Thomas know that he would be arriving shortly in the District of
Columbia. Within thirty minutes of leaving Richmond, law
enforcement officials stopped Tyrone’s car and seized the four
kilograms of cocaine in the trunk.
Tyrone spoke that day with the FBI and agreed to cooperate
with law enforcement by making recorded phone calls to
Thomas regarding the four kilograms of cocaine. During these
calls, Tyrone communicated a law-enforcement improvised ruse.
He initially told Thomas that the bag had been delayed and then
lost in the Greyhound baggage system. Thomas expressed his
anger that Tyrone allowed the bag out of his sight, suggested the
bag had been stolen by Greyhound employees or seized by law
enforcement, and warned Tyrone that he would have to pay for
the lost drugs. Tyrone, as instructed by the FBI, also arranged
to send Thomas a facsimile copy of his baggage claim ticket.
On May 3, 2004, the FBI intercepted a call in which Tyrone told
Thomas that he had located the bag in Spartanburg, South
Carolina but the cocaine was missing. When other intercepted
calls indicated that Miller, Eiland, and Thomas suspected that
Tyrone had stolen the cocaine, the investigators told Tyrone to
confirm his cohorts’ suspicions. In a May 4, 2004 call, Tyrone
admitted to Thomas that he had stolen the cocaine but offered to
return one kilogram in recognition of their past friendship.
Thomas agreed to have Tyrone leave the cocaine at a hotel room
where he could retrieve it. Investigators set up a reverse sting
on May 19, 2004, planting the kilogram in a hotel room in
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Alexandria. When one of Thomas’ associates, Greta Frank,
came to the room and retrieved the cocaine, she was arrested.
Search warrants were executed between May and July 2004.
Recovered from Miller’s house and his aunt’s house (which
Miller frequently used) were tools of the drug trade, including
drug packaging materials and two bulletproof vests. Recovered
from Thomas’ apartment were a digital scale, counterweights,
small empty ziploc bags and ziploc bags containing 0.41 grams
of cocaine, a “Cocaine Handbook,” and a telephone “bug”
detector.
On March 20, 2006, the grand jury returned a superceding
71-count indictment against Miller, Eiland, Thomas, and six co-
defendants. Miller and Thomas were charged with conspiracy
to distribute and possess with intent to distribute narcotics, 21
U.S.C. § 846; conspiracy to violate the RICO Act, 18 U.S.C.
§ 1962(d); distribution, possession, and attempted possession
with intent to distribute (“PWID”) narcotics, 21 U.S.C.
§§ 841(a)(1), 841(b)(1), 846; unlawfully using a communication
facility, 21 U.S.C. § 843(b); conspiracy to commit murder, D.C.
CODE §§ 22-1805a, 22-2101; and conspiracy to murder in aid of
racketeering activity, 18 U.S.C. § 1959(a)(5). Miller was also
charged with engaging in a continuing criminal enterprise
(“CCE”), 21 U.S.C. § 848(a)–(b). See also Eiland, slip op. at
3–5. The district court denied the defense motions to suppress
the wiretap evidence. United States v. Eiland, 398 F. Supp. 2d
160 (D.D.C. 2005). At the close of all the evidence, the district
court granted the government’s motion to dismiss two PWID
counts and eight communication facility counts against Miller,
as well as both murder conspiracy counts.
The jury found Miller guilty of twenty-one counts of
unlawfully using a communication facility, and not guilty of one
count of possession with intent to distribute PCP and sixteen
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counts of unlawfully using a communication facility. The jury
hung on the remaining charges against Miller, including
narcotics conspiracy, RICO conspiracy, CCE, two counts of
attempted PWID, and seven counts of unlawfully using a
communication facility. Miller was sentenced after the jury in
the second trial returned verdicts on the hung counts. See
Eiland, slip op. at 4–6. The jury found Thomas guilty of
narcotics conspiracy, RICO conspiracy, PWID cocaine, and ten
counts of unlawfully using a communication facility; he was
acquitted of the remaining count of unlawfully using a
communication facility. The district court sentenced Thomas to
life imprisonment for narcotics conspiracy and RICO
conspiracy, twenty years for PWID cocaine, and four years for
each communication facility offense, all to be served
concurrently. The district court denied the defense motions for
a new trial. See United States v. Eiland, 525 F. Supp. 2d 37
(D.D.C 2007), rev’d on other grounds, United States v. Gaskins,
690 F.3d 569 (D.C. Cir. 2012); United States v. (Timothy)
Thomas, 525 F. Supp. 2d 17 (D.D.C 2007).
II.
Overview Testimony. Miller and Thomas contend that the
trial testimony of FBI Agents Daniel Sparks and Scott Turner
and Detective Steven Hall (a former FBI Agent) ran afoul of this
court’s precedents limiting the permissible use of “overview” or
“summary” witnesses and lay opinion testimony. They point to
the testimony on (1) the procedures for obtaining wiretaps and
search warrants; (2) the methods used to ensure the truthfulness
of cooperating witnesses; (3) the nature of criminal enterprises
and the techniques used to investigate them; and (4) the meaning
and significance of wiretapped phone calls. This testimony,
Miller and Thomas maintain, unfairly allowed the prosecution
to bolster the strength of its case and deprived them of a fair
trial. Properly understood, Miller’s and Thomas’ objections
8
concern both overview and lay opinion testimony. Here, we
address the former; we address the latter in Part III, infra.
In United States v. Lemire, 720 F.2d 1327, 1348–49 (D.C.
Cir. 1983), this court identified three “obvious dangers” posed
by “summary” testimony: (1) “a jury will treat the summary as
additional evidence or as corroborative of the truth of the
underlying testimony,” (2) the testimony will result in “the
subtle introduction of otherwise inadmissible evidence,” and
(3) the testimony will “provide an extra summation for the
government that comes from the witness stand rather than the
counsel’s lectern.” A clear illustration of these “obvious
dangers” occurred in United States v. Moore, 651 F.3d 30,
54–55 (D.C. Cir. 2011), where Agent Sparks’ trial testimony
provided at the outset of the trial “an overview of the
government’s case, setting forth for the jury the script of the
testimony and evidence the jury could expect the government to
present in its case-in-chief” and “expressed his opinion, based
on his training and experience, about the nature of the
investigation conducted in th[e] case.” This court held his
testimony “was improper in offering his non-expert opinions
about the charged conspiracy and [the defendants], vouching for
the reliability of the investigation and of the cooperating co-
conspirator witnesses the government planned to have testify at
trial, and discussing evidence that had yet to be introduced.” Id.
at 60. More generally, the court “condemn[ed]” the use of
overview witnesses in criminal trials “[b]ecause a witness
presenting an overview of the government’s case-in-chief runs
the serious risk of permitting the government to impermissibly
‘paint a picture of guilt before the evidence has been introduced’
and may never be introduced.” Id. (citation omitted) (quoting
United States v. Griffin, 324 F.3d 330, 349 (5th Cir. 2003)).
In Moore, the court set forth “clear direction” that “[t]he
government remains free to call as its first witness a law
9
enforcement officer who is familiar with the pre-indictment
investigation or was otherwise personally involved,” and such
a witness may “provide relevant background information as to
the investigation’s duration and scope or the methods of
surveillance, based on personal knowledge.” Id. at 60–61.
Thus, in a narcotics conspiracy prosecution, a government agent
“could properly describe, based on his personal knowledge, how
the gang investigation . . . was initiated, what law enforcement
entities were involved, and what investigative techniques were
used.” Id. at 61. On the other hand, the government agent could
not (1) “present lay opinion testimony about investigative
techniques in general and opine on what generally works and
what does not,” (2) “anticipate evidence that the government
would hope to introduce at trial about the charged offenses,” or
(3) “express an opinion, directly or indirectly, about the strength
of that evidence or the credibility of any of the government’s
potential witnesses, including the cooperating co-conspirators.”
Id.
Miller and Thomas contend that FBI Agent Sparks’
testimony about procedures for obtaining search warrants and
wiretaps, and similar testimony by FBI Agent Turner, “crossed
the line by advancing the argument that multiple layers of court
and prosecutor review served [as] an independent approval of
the agents’ conclusions of illegality.” Appellants’ Br. 54. In
discussing search warrants, Sparks testified “we have to provide
facts and justify to a judge why we need to get a search warrant”
and described how an application is “reviewed by the U.S.
Attorney’s Office, and then it goes to a Federal Magistrate Judge
who reviews it to decide whether or not they’ll issue a search
warrant.” Mar. 21, 2006 PM Trial Tr. at 14. Sparks also
testified that a wiretap is “a court order that allows law
enforcement to listen to and monitor private conversations,” and
that investigators prepare “daily reports that go to the U.S.
Attorney’s Office,” as well as “a ten or fifteen day report to the
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Court,” in order for the court to “monitor the status of the
wiretap.” Id. at 17–18. FBI Agent Turner described how a
wiretap application is approved by the U.S. Attorney’s Office,
the Justice Department, and the FBI’s legal counsel before it is
sent to a judge who “either authorizes or denies it.” Mar. 22,
2006 AM Trial Tr. at 85. Although the “layering” testimony
about multiple levels of approval can be overdone in a manner
that would substantiate Miller’s and Thomas’ concern, see
United States v. Cunningham, 462 F.3d 708, 712–15 (7th Cir.
2006), they raised no objection in the district court. Upon plain
error review, see United States v. Olano, 507 U.S. 725, 732–34,
736 (1993); United States v. Bailey, 319 F.3d 514, 521 (D.C.
Cir. 2003), we conclude that this testimony by Sparks and
Turner was not so extreme as to suggest, in the absence of a
limiting instruction, that the suspicions of investigators about the
defendants were confirmed because the applications were
subject to multiple layers of review; rather, the agents addressed
the lawfulness of investigative conduct, which was not the same
as evidence of a defendant’s guilt.
Miller and Thomas also contend that FBI Agent Sparks’
testimony about the investigation of criminal enterprises in
general was impermissible. This court has drawn a line between
permissible lay opinion testimony under Federal Rule of
Evidence 701 and expert opinion testimony under Rule 702. In
Moore, 651 F.3d at 61, the court held that a government agent
could not “present lay opinion testimony about investigative
techniques in general.” Thus, “[a]n individual testifying about
the operations of a drug conspiracy because of knowledge of
that drug conspiracy . . . should be admitted as a lay witness; an
individual testifying about the operations of a drug conspiracy
based on previous experiences with other drug conspiracies . . .
should be admitted as an expert.” United States v. (George)
Wilson, 605 F.3d 985, 1026 (D.C. Cir. 2010). The court has
“drawn that line because knowledge derived from previous
11
professional experience falls squarely ‘within the scope of Rule
702’ and thus by definition outside of 701.” United States v.
Smith, 640 F.3d 358, 365 (D.C. Cir. 2011) (quoting FED. R.
EVID. 701(c)).
FBI Agent Sparks’ testimony about criminal enterprises and
investigative techniques appeared to be premised on his
specialized knowledge as a criminal investigator, rather than his
particularized knowledge of how the Miller/Eiland drug
operation was investigated. As such, its admission was plainly
erroneous. See Moore, 651 F.3d at 61; (George) Wilson, 605
F.3d at 1026. Although this court had not decided Moore or
(George) Wilson at the time of Miller’s and Thomas’ trial, the
Supreme Court held in Henderson v. United States, 133 S. Ct.
1121, 1130–31 (2013), that an error need only be “plain” at the
time of appellate consideration. In the district court, Miller and
Thomas objected to Sparks’ testimony with respect to how a
criminal enterprise maintains secrecy, but not to Sparks’
overview of the investigative techniques used to infiltrate
criminal enterprises. Regardless of whether the objection to the
error was preserved as to all of Sparks’ testimony, Miller and
Thomas cannot show substantial prejudice. See Olano, 507 U.S.
at 734; Kotteakos v. United States, 328 U.S. 750, 776 (1946).
As the court observed in Moore, Sparks might have qualified as
an expert because he had been an FBI agent for over fifteen
years and had served as the lead agent in five or six criminal
enterprise investigations. See Moore, 651 F.3d at 61; Smith, 640
F.3d at 366.
On the other hand, the government acknowledges that
Miller’s and Thomas’ objection to FBI Agent Sparks’ vouching
testimony is well taken, stating “this Court has since
disapproved of the kind of testimony Sparks gave about the
importance and handling of cooperators.” Appellee’s Br. 53
(citing Moore, 651 F.3d at 59–60). Sparks testified not only that
12
cooperating witnesses are used because they are “easily accepted
by the criminals that we’re investigating” and “have access to
the insiders,” Mar. 21, 2006 PM Trial Tr. at 13–14, 20, but about
how investigators ensure that cooperating witnesses are truthful,
including checking to determine if what they say is consistent
with other evidence, such as “an autopsy report, or a crime scene
report, or a police report, or airline reservations, or . . . a pen
register, or . . . a wiretap . . . [to] get a sense whether or not
they’re telling the truth.” Id. at 21–22. Moreover, Sparks
testified — in response to a series of questions from the
prosecution impermissibly prompting answers that would invade
the jury’s right to make credibility determinations, see United
States v. Boyd, 54 F.3d 868, 871–72 (D.C. Cir. 1995) — that any
cooperating witness who would testify at trial or on whom the
government had relied in the instant case was a truth teller.
Vouching testimony of this kind is impermissible because
it manifests the “obvious danger[]” that “a jury will treat [a
summary witness, particularly a government agent] as additional
evidence or as corroborative of the truth of the underlying
testimony.” Lemire, 720 F.3d at 1348. But Miller and Thomas
have not shown the error affected their substantial rights, see
Olano, 507 U.S. at 734; Kotteakos, 328 U.S. at 776, because any
prejudice from the vouching testimony was adequately
mitigated. See United States v. Brown, 508 F.3d 1066, 1074
(D.C. Cir. 2007). The district court instructed the jurors that
they were “the sole judges of the credibility of the witnesses,”
and they “alone [we]re to determine whether to believe any
witness and the extent to which any witness should be believed.”
May 25, 2006 PM Trial Tr. at 15. Testimony from the
government’s primary cooperating witness, Tyrone, was heavily
impeached on cross-examination. See Part V infra. And, on the
counts on which the jury returned guilty verdicts, as in Moore,
651 F.3d at 61, there was overwhelming evidence of Miller’s
and Thomas’ guilt, independent of any cooperator testimony, in
13
view of the numerous taped phone conversations and the four
kilograms of cocaine seized from Tyrone that incriminated both
Miller and Thomas.
III.
Lay Opinion Testimony. Miller’s and Thomas’ challenge
to the lay opinion testimony by FBI Agents Sparks and Turner
and Detective Hall focuses on the witnesses’ interpretation of
the recorded phone conversations. The government’s suggestion
that this challenge was not preserved because Miller and
Thomas fail to describe specific instances that “actually led to
the introduction of damaging evidence against them,”
Appellee’s Br. 54 (citing United States v. Hall, 370 F.3d 1204,
1209 n.4 (D.C. Cir. 2004)), is not well taken. All of the taped
phone calls were admitted into evidence and incriminating tapes
were played at trial. On appeal, Miller and Thomas renew their
objections in the district court that portions of the interpretative
testimony lacked a foundation or basis. See Appellants’ Br.
49–50, 53.
In United States v. Hampton, 718 F.3d 978, 981–82 (D.C.
Cir. 2013), the court held that the district court abused its
discretion by admitting lay opinion testimony by a government
agent that did not satisfy the requirements of Rule 701. The
court emphasized that “[e]nforcement of Rule 701’s criteria . . .
ensures that the jury has the information it needs to conduct an
independent assessment of lay opinion testimony.” Id. at 781.
“Judicial 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 781-82.
Because the government agent’s testimony was broadly based
on his “‘knowledge of the entire investigation,’” the court
concluded that “the jury had no way of verifying [the agent’s]
14
inferences or of independently reaching its own interpretations.”
Id. at 983 (quoting United States v. Grinage, 390 F.3d 746, 750
(2d Cir. 2004)); accord United States v. Albertelli, 687 F.3d 439,
450 (1st Cir. 2012); United States v. Garcia, 413 F.3d 201,
212–13 (2d Cir. 2005); Grinage, 390 F.3d at 750–51.
FBI Agents Sparks and Turner and Detective Hall offered
their lay opinions regarding the meaning and “significance” of
certain wiretapped phone conversations. Turner testified over
several days, often opining based on “the overall state of the
investigation,” his “overall knowledge of the investigation,” his
“perceptions in this case,” and other similarly general bases.
See, e.g., May 23, 2006 PM Trial Tr. at 26. He also testified
about the meaning of coded language in phone conversations, id.
at 51, although “[i]n this case we didn’t really see any consistent
use of any code words indicating any drugs,” id. at 53. Sparks
and Detective Hall likewise interpreted the meaning of recorded
phone conversations based on their “knowledge of the overall
investigation,” or similar generalized bases, such as “knowledge
that [they] received in this investigation,” and “the wiretap in
general.” See, e.g., Apr. 24, 2006 AM Trial Tr. at 38–39, 45.
Admission of the government agents’ interpretative lay
opinion testimony was plain error under Hampton. Their
interpretations of non-coded language was erroneously admitted
because they 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. See Hampton, 718 F.3d at
981–82. This gave the jury no effective way to evaluate their
opinions. But, unlike in Hampton, the error was not
substantially prejudicial. See id. at 984 (citing Kotteakos, 328
U.S. at 765). The prejudice in Hampton was apparent from the
absence of other evidence to support the convictions. There, the
government pointed to no “money, drugs, weapons, or other
15
evidence seized by law-enforcement personnel that could be tied
to Hampton’s alleged role in the conspiracy.” Id. Here, the
opposite is true: the government points to the seized evidence,
most particularly to the four kilograms of cocaine seized from
Tyrone’s car that were tied to Miller and Thomas not only
through Tyrone’s testimony but also by the consensually
recorded phone conversations between Thomas and Tyrone that
were not interpreted by government agents at trial.
IV.
Co-Conspirator Statements. Miller and Thomas contend
that the district court erred by permitting Melvin Wider to testify
regarding conversations he had with Eiland and Robert Bryant
(neither of whom was a defendant in the first trial) because these
conversations were made neither during nor in furtherance of a
conspiracy, and thus constituted inadmissible hearsay. We
agree. See United States v. Celis, 608 F.3d 818, 843 (D.C. Cir.
2010).
Under Federal Rule of Evidence 801(d)(2)(E), a statement
is not hearsay if it “is offered against an opposing party and . . .
was made by the party’s coconspirator during and in furtherance
of the conspiracy.” FED. R. EVID. 801(d)(2)(E). Statements are
made in furtherance of a conspiracy if they “can reasonably be
interpreted as encouraging a co-conspirator or other person to
advance the conspiracy, or as enhancing a co-conspirator or
other person’s usefulness to the conspiracy.” United States v.
Tarantino, 846 F.2d 1384, 1412 (D.C. Cir. 1988). Such
statements include “those that keep a coconspirator updated on
the status of the business, motivate a coconspirator’s continued
participation, or provide background information on key
conspiracy members.” United States v. Carson, 455 F.3d 336,
367 (D.C. Cir. 2006) (citations and internal quotation marks
omitted). On the other hand, “mere narratives of past successes
16
and failures” or “a conspirator’s casual comments to people
outside or inside the conspiracy” are not admissible under Rule
801(d)(2)(E). Tarantino, 846 F.2d at 1412 (internal quotation
marks omitted).
Wider met Eiland and Bryant while they were all
incarcerated in the Montgomery County (Maryland) jail in 2005
after Eiland and Bryant had been arrested and charged in the
Miller/Eiland drug conspiracy. At that time, Wider had pleaded
guilty to a different RICO conspiracy than was charged in the
instant case, and he was cooperating with law enforcement
officials. According to Wider, Eiland and Bryant told him about
Bryant providing PCP to Miller, Thomas’ involvement in the
Phoenix cocaine transaction, and Miller’s involvement in a
private investigative service that Wider claimed was used as a
front for a murder-for-hire operation. The prosecution proffered
that Wider had been enlisted in the conspiracy while
incarcerated by helping Bryant make contact with a woman in
Kansas City named Shantel who had previously obtained cell
phones and stored drugs for Bryant, and by assisting Miller,
Eiland, and Corey Moore in contacting Bryant while
incarcerated, in violation of a separation order. The district
court denied Thomas’ motion to exclude Wider’s testimony,
ruling it was admissible under Rule 801(d)(2)(E).
The admission of Wider’s testimony was error, not because
of lack of independent evidence of a conspiracy, but because
none of the statements to Wider by Eiland or Bryant can be
construed as in furtherance of the conspiracy, which ended in
September 2004, several months before any of the statements
were made to Wider. There is no evidence that either Eiland or
Bryant did anything after their respective August and October
2004 arrests to carry out the goals of the conspiracy, and their
statements cannot “plausibly be interpreted” as advancing the
conspiracy. United States v. Edmond, 52 F.3d 1080, 1111 (D.C.
17
Cir. 1995). Rather, the co-conspirators’ statements recounted
“past victories and losses” and were “casual comments,”
Tarantino, 846 F.2d at 1412, or “idle chatter,” see Carson, 455
F.3d at 366–67. The government’ suggestion that statements
recounted by Wider describing the conspiracy’s drug trafficking
and other illegal activities were made in furtherance of the
conspiracy because they “‘updated’ Wider about the status of
the drug trafficking business, and provided ‘background
information’ on the conspiracy’s members,” Appellee’s Br. 63
(quoting Carson, 455 F.3d at 367), ignores the temporal element
of the conspiracy and the absence of any evidence the speakers
were attempting to induce Wider to join or provide assistance to
the terminated conspiracy, as occurred in United States v.
Shores, 33 F.3d 438, 444 (4th Cir. 1994). The other cases cited
by the government involved on-going conspiracies, United
States v. Martinez, 430 F.3d 317, 327 (6th Cir. 2005), or
statements by one co-conspirator to another, United States v.
Weaver, 507 F.3d 178, 183 (3d Cir. 2007); Carson, 455 F.3d at
367.
Despite the error, there was no substantial prejudice to
either Miller or Thomas. See Kotteakos, 328 U.S. at 776.
Wider’s testimony that inculpated Miller related to counts that
were either dropped by the prosecution before the case was
submitted to the jury or on which the jury did not convict him,
namely Counts 1–7, 68, and 69. Wider’s testimony that
inculpated Thomas related to the four-kilogram Phoenix cocaine
transaction and was cumulative of other evidence.
V.
Cross-Examination of Cooperating Witness. Miller and
Thomas also contend that the district court abused its discretion
by limiting cross-examination of Tyrone and thereby violated
their confrontation rights under the Sixth Amendment. We find
18
neither an abuse of discretion, see United States v. White, 116
F.3d 903, 919 (D.C. Cir. 1997), nor constitutional error.
The Sixth Amendment guarantees a criminal defendant the
right to cross-examine the witnesses called against him.
Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). Although
the Confrontation Clause guarantees an opportunity for effective
cross-examination, “trial judges retain wide latitude . . . to
impose reasonable limits on such cross-examination.” Id. at
679. “The Confrontation Clause is violated only when the court
bars a legitimate line of inquiry that ‘might’ have given the jury
a ‘significantly different impression of [the witness’s]
credibility.’” United States v. Hayes, 369 F.3d 564, 566 (D.C.
Cir. 2004) (alteration in original) (quoting Van Arsdall, 475 U.S.
at 680).
Under Federal Rule of Evidence 608(b), a party may inquire
on cross-examination about “specific instances of a witness’s
conduct in order to attack or support the witness’s character for
truthfulness,” so long as the specific instances of conduct “are
probative of the character for truthfulness or untruthfulness.”
FED. R. EVID. 608(b). Additionally, “evidence that would
contradict [a witness’s] trial testimony, even on a collateral
subject,” is ordinarily probative because it “would undermine
[the witness’s] credibility as a witness regarding facts of
consequence.” United States v. Fonseca, 435 F.3d 369, 375
(D.C. Cir. 2006). In considering whether a topic is probative of
untruthfulness, the district court “is guided by several factors,
including whether the instances of prior untruthfulness bore
some similarity to the conduct at issue, whether or not they were
remote in time, whether they were cumulative of other evidence,
and whether there was some likelihood they happened.” United
States v. Simonelli, 237 F.3d 19, 23 (1st Cir. 2001); accord
United States v. Morrison, 98 F.3d 619, 628 (D.C. Cir. 1996).
It is within the district court’s discretion to balance these factors
19
to decide whether the conduct at issue is sufficiently probative
of the witness’s character for untruthfulness to be admitted
under Rule 608. See Morrison, 98 F.3d at 628.
At trial, the defense sought to cross-examine Tyrone
regarding his kidnaping trial in St. Louis in 1975. In that trial,
the district court had ordered a psychological evaluation of
Tyrone. See United States v. (Tyrone) Thomas, 536 F.2d 274,
275 (8th Cir. 1976). After the district court had found Tyrone
was incompetent to stand trial in view of a diagnosis that he
suffered from paranoid schizophrenia, two doctors who
subsequently reexamined him “observed a revealing and sudden
improvement in [Tyrone’s] behavior after the first competency
hearing.” Id. at 276. One psychiatrist concluded that Tyrone
“had simply succeeded in fooling the psychiatrists at the outset,”
and a psychologist testified that Tyrone had admitted to her that
he had feigned his mental illness. Id. Cross-examination about
his 1975 criminal trial was proper, appellants maintain, under
Federal Rule of Evidence 608(b) as probative of Tyrone’s
character for untruthfulness, because it would “show that Tyrone
had attempted to perpetrate a fraud on the federal court in St.
Louis.” Appellants’ Br. 67. The district court ruled “[i]t’s so
extraneous, and so beyond anything beyond the pale, I’m not
going to allow it.” Apr. 3, 2006 PM Trial Tr. at 51.
The defense also sought to cross-examine Tyrone about his
alleged attempt to shoot someone when he was 13 years old (in
approximately 1961) in order to impeach his testimony on direct
examination that he “started having a lot of problems when [he]
came back from Vietnam,” including drug use, several run-ins
with the law, and the onset of post-traumatic stress disorder
(“PTSD”). Mar. 29, 2006 PM Trial Tr. at 40. When the
prosecution objected to the question, counsel for Corey Moore
argued “[t]he government opened the door when [it] elicited
from [Tyrone] that all of this criminal activity was the result of
20
[PTSD] in Viet Nam [sic]. We had a basis by his own
admission to say there was conduct that preceded [that].” Apr.
3, 2006 PM Trial Tr. at 84. The district court, which treated any
defense objection as an objection by all defendants, sustained
the prosecution’s objection.
We hold that the district court did not abuse its discretion in
prohibiting these two lines of questioning on cross-examination.
Not only were the events over thirty years old, the suggestion
that Tyrone had attributed all of his criminal behavior to his
experiences in Vietnam is incorrect. The probativeness of the
inquiry into what happened at the 1975 trial was diluted both by
its remoteness in time, see, e.g., United States v. Augustin, 661
F.3d 1105, 1128 (11th Cir. 2011), and by the fact that the cross-
examination would have been based on accusations, not a prior
judicial finding Tyrone had lied in 1975 about his mental state.
Compare United States v. Whitmore, 359 F.3d 609, 620 (D.C.
Cir. 2004), with Morrison, 98 F.3d at 628. See generally
(Tyrone) Thomas, 536 F.2d at 275–77. Similarly, even if
inquiry into Tyrone’s attempt to shoot someone when he was 13
years old would have been impeachment-by-contradiction,
because “[t]he evidence of Tyrone’s violent juvenile conduct
directly contradicted his testimony that his criminal activity was
caused by [PTSD] stemming from his service in Vietnam,”
Appellants’ Br. 71, any contradiction would have been
ambiguous because Tyrone had not testified on direct
examination that he had never engaged in criminal misconduct
prior to serving in Vietnam; on cross-examination he explained
he had claimed only that his “criminal involvement was
principally related to [his] coming back from Viet Nam [sic].”
Apr. 3, 2006 PM Trial Tr. at 82 (emphasis added).
We also hold that the district court’s limitation on Tyrone’s
cross-examination did not violate Miller’s or Thomas’ Sixth
Amendment rights. They maintain “[t]he cross[-examination]
21
that was not permitted would have been ‘almost unique in its
detrimental effect on [Tyrone’s] credibility.’” Appellants’ Br.
73 (quoting United States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir.
1996)). But at trial defense counsel attacked Tyrone’s
credibility by cross-examining him about numerous other
instances of prior misconduct, including arrests, violating
conditions of release, and lying to law enforcement and a
bankruptcy court. Under the circumstances, there is no basis to
conclude that a reasonable jury would have “received a
significantly different impression of [Tyrone’s] credibility had
[defense] counsel been permitted to pursue [the] proposed
line[s] of cross-examination.” Van Arsdall, 475 U.S. at 680.
VI.
Sufficiency of Evidence. Thomas contends there was
insufficient evidence to convict him of Count 33 and
Racketeering Act 5(a). Count 33 charged Miller and Thomas
with unlawfully using a communication facility, that is, a
telephone, on or about March 5, 2004 at 12:30 p.m., to facilitate
the conspiracy to unlawfully distribute or possess with intent to
distribute heroin, cocaine, crack cocaine, and PCP.
Racketeering Act 5(a) charged them with unlawfully using a
communication facility, that is, a telephone, to facilitate the
unlawful distribution of PCP in the RICO conspiracy. This
court “review[s] the evidence of record de novo, considering that
evidence in the light most favorable to the government, and
affirm[s] a guilty verdict where ‘any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.’” United States v. Wahl, 290 F.3d 370, 375
(D.C. Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
The essential elements of unlawfully using a
communication facility are: (1) knowing or intentional use;
22
(2) of a communication facility; (3) in committing or in causing
or facilitating the commission of any act constituting a drug-
related felony. 21 U.S.C. § 843(b). The evidence showed that
at 12:29 p.m. on March 5, 2004, Miller called Thomas, and
when Thomas answered his phone Miller told him that although
he was “running a little behind” he “wanted to see [Tyrone]
anyway.” Miller asked Thomas whether Miller could “hollar
[sic] at” Tyrone; Thomas replied, “Alright.” The next voice on
the tape is Tyrone’s. Miller proceeded to tell Tyrone: “I want to
see you because I got something, something for you.
Information.” Miller and Tyrone arranged to meet. Other
recorded phone calls and Tyrone’s trial testimony established
that Tyrone met Miller on March 5, 2004, to arrange for the
transporting of PCP to Kansas City. Although Tyrone testified
at trial that Miller initially contacted him to arrange transport of
PCP “in or around . . . February of 2004” (when Tyrone was still
in Atlanta), Mar. 28, 2006 PM Trial Tr. at 42, viewing the
evidence most favorably to the government indicates that the
face-to-face meeting between Miller and Tyrone was arranged
during the recorded phone calls on March 5, 2004. See Wahl,
290 F.3d at 375. Tyrone testified that this meeting took place at
Thomas’ residence in the District of Columbia, that Thomas was
present at the time, and that at the meeting Miller told Tyrone he
was to take a batch of “no good” PCP to Robert Bryant in
Kansas City. Thomas’ presence at the meeting is partially
corroborated by another taped phone call on March 5, 2004 in
which Miller told Thomas that he was “downstairs.”
Thomas maintains that “the fact that [he] was with Tyrone,
answered the phone and then handed the phone to Tyrone, does
not permit a jury to find beyond a reasonable doubt that [he]
knowingly facilitated the distribution of PCP through the use of
the telephone.” Appellants’ Br. 108. Mere association is not
enough. See id. (citing United States v. Webster, 639 F.2d 174,
188 (4th Cir. 1981)). Although the question is close, we hold
23
that the evidence was sufficient when viewed in the context of
Miller’s and Thomas’ activities. The evidence established that
they had used Tyrone as a drug courier prior to March 5th. This
context would permit a reasonable inference that Thomas knew
what Miller had in mind when he asked Thomas to “hollar [sic]
at” Tyrone. Viewed most favorably to the government, the
evidence sufficed to show, given the nature of Miller’s and
Thomas’ drug-related activities, that Thomas knew that the
purpose of the March 5, 2004 meeting was to arrange for the
interstate transport of illegal drugs, and he helped to arrange it
by his use of a phone, even assuming his knowing use of a
phone on March 5, 2004 may have played a comparatively small
part in facilitating the transaction.
VII.
Unredacted and Unplayed Tapes to Jury. Prior to
commencement of the jury deliberations, the district court
addressed which tape recordings should be sent to the jury. All
the tapes had been admitted into evidence, see (Timothy)
Thomas, 525 F. Supp. 2d at 34, but only certain tapes were
played for the jury during the trial and some of those were
played selectively, with the prosecution stopping the tape
recording in accordance with an agreement with defense
counsel. At the conclusion of the presentation of evidence,
defense counsel, who were not in agreement whether all of the
recorded calls should be sent to the jury, requested the district
court to allow them the opportunity to request redaction of any
tapes sent to the jury that had not been played during the trial.
The district court granted the defense request, ruling that “if a
call that wasn’t played in the courtroom is going to go to the
jury, [the defense must] know[] about it, and if it has something
that should be redacted, [the defense] can get it redacted.” May
22, 2006 AM Trial Tr. at 132–33. The district court also
instructed the jury that it would receive “computer dis[c]s of all
24
the calls that were actually played during the trial,” and that if
the jury “want[ed] to listen to additional calls . . . [it should]
[s]end a note to the Court” and “[t]he Court will then discuss the
note and/or request with counsel and make arrangements for the
jury to inspect the specific item of evidence that the jury has
requested.” May 25, 2006 PM Trial Tr. at 77–78.
When the prosecution provided defense counsel with the
two CDs containing recorded calls, however, an accompanying
letter stated that “the audio files were copied as they were
originally intercepted,” the government “could not redact or
copy only a portion of a call,” and, consequently, “any self-
censorship that the prosecution or the defendants employed
during the trial will not occur if the jury chooses to listen to
those calls.” The letter suggested defense counsel confer with
their clients “and if this needs to be addressed with the Court,
we should do so before the Court provides the jury with the 2
CDs.” The record does not indicate that either the prosecution
or defense counsel brought the non-redaction circumstance to
the district court’s attention before the CDs were sent to the jury.
Miller’s trial counsel’s “recollection is that he objected to the
‘calls played [on the] CD’ going back to the jury without
redaction,” Appellants’ Br. 88 n.59, but this occurred before the
district court’s ruling, when defense counsel were not in
agreement about which calls should go to the jury. In addition
to the unredacted calls played at trial, unplayed calls were also
on the CDs that were sent to the jury. See id. at 87; Appellee’s
Br. 83 n.79.
Miller and Thomas contend the submission of unredacted
and unplayed taped phone calls to the jury was reversible error.
They suggest the circumstances are similar to those in United
States v. Lampkin, 159 F.3d 607 (D.C. Cir. 1998); United States
v. Cunningham, 145 F.3d 1385 (D.C. Cir. 1998); and United
States v. Noushfar, 78 F.3d 1442 (9th Cir. 1996). These cases
25
involved violations of the Confrontation Clause. Lampkin, 159
F.3d at 613–14; Cunningham, 145 F.3d at 1393; see also
Noushfar, 78 F.3d at 1445. Any statements in the unplayed
phone conversations made during and in furtherance of the drug
conspiracy, see FED. R. EVID. 801(d)(2)(E), could be admitted
without violating the Confrontation Clause. See Carson, 455
F.3d at 365 (citing Bourjaily v. United States, 483 U.S. 171,
182–84 (1987)); see also Crawford v. Washington, 541 U.S. 36,
56 (2004). None of the eight unplayed phone calls identified by
Miller and Thomas was consensually recorded, and therefore
“cannot be deemed ‘testimonial’ as the speakers certainly did
not make the statements thinking that they ‘would be available
for use at a later trial.’” United States v. Hendricks, 395 F.3d
173, 181 (3d Cir. 2005) (quoting Crawford, 541 U.S. at 52).
The holding in Noushfar, 78 F.3d at 1445, that the “tapes went
to the jury room in violation of [Federal] Rule [of Criminal
Procedure] 43,” is inconsistent with this court’s holding that
“tape replaying [is] not a stage of trial implicating the
confrontation clause or Rule 43(a),” United States v. Sobamowo,
892 F.2d 90, 97 (D.C. Cir. 1989).
Sending the unplayed and unredacted played phone calls to
the jury, however, violated the district court’s ruling that only
portions of played calls were to be sent to the jury and, as to
unplayed calls requested by the jury, the defense would have an
opportunity to seek redactions. Cf. Dallago v. United States,
427 F.2d 546, 555 (D.C. Cir. 1969). This error by the
prosecution, avoidable through the exercise of reasonable
diligence, was fundamentally unfair. The defense was deprived
of the benefit of the district court’s ruling that only the played
portions of calls were initially to be sent to the jury and that if
the jury were to request unplayed calls, the defense would have
the opportunity to seek redactions. Also, to the extent the jury
received on the CDs a biased sampling of unplayed calls that the
prosecution had intended to play at trial, the defense was caught
26
off guard and no longer had the ability to place the unplayed
calls in context or otherwise try to mitigate their weight for the
jury.
Although the error was obviously serious because it
involved a violation of the district court’s ruling, Miller and
Thomas fail to demonstrate the error had a “substantial and
injurious effect or influence in determining the jury’s verdict.”
Kotteakos, 328 U.S. at 776. The eight examples of unplayed
calls sent to the jury that Miller and Thomas maintain were
inculpatory include only one (# 8627) that may have warranted
redaction in view of the foul language used by Miller and
Eiland. But given the extensive use of foul language in the
recorded phone calls, this one instance is insufficient to
constitute substantial prejudice. Sending the unredacted tapes
that were only partially played at trial to the jury also caused no
substantial prejudice; the references to Thomas’ time in prison
and what his brief describes as the “shanking” of another
inmate, Appellants’ Br. 86, were brief and too obscure to discern
their meaning.
VIII.
Responses to Jury Notes. After commencement of the
jury’s deliberations, the jury sent a series of notes to the district
court. Miller and Thomas renew the defense objections to the
district court’s responses to six jury notes, contending that by
allowing itself to be enlisted in the fact-finding process, the
district court usurped the jury’s exclusive role and thereby
deprived them of their Sixth Amendment right to trial by jury.
They rely principally on United States v. Ayeni, 374 F.3d 1313
(D.C. Cir. 2004), where this court held that the district court had
abused its discretion by permitting counsel for both parties to
make supplemental arguments to the jury in response to its
factual questions after it had begun deliberating. Miller and
27
Thomas maintain the situation at their trial was even worse
because the district court placed its imprimatur on the
prosecution’s effort to supply the jury with what the prosecution
deemed to be the correct answers to the jury’s factual inquiries.
In their view, “the [district] court did not . . . independently
determine that these calls were the ones at issue,” but instead
“simply took the government’s word for [it].” Appellants’ Br.
38.
Jury Note 1. On May 30, 2006, the second day of
deliberations, the jury sent a note stating there was an “error in
the verdict form [and] the indictment.” The note stated that
phone calls for communication facility offenses Counts 19, 20,
and 21 were “listed as” taking place on specific dates and times
in the verdict form and the indictment, but for each count “no
such call exists.” The jury asked the district court whether the
counts were “meant to be” particular recorded phone calls
(which the jury identified for each count by “activation
[numbers]”) that had been entered into evidence at trial. For
example, the jury note stated: “Count 20 — listed as Feb. 20,
2004 9:51 p.m. [N]o such call exists. Is this meant to be
activation # 527 at 9:51 a.m.?” (emphasis added). The jury
asked similar specific questions for Counts 19 and 21. Over
defense objection to the district court’s proposed response as
improperly amending the indictment, the district court
responded “yes” as to each count.
Jury Note 2. On May 31, 2006, the jury asked for
“clarification of the verdict form” and posed two different kinds
of questions in its note to the district court. First, the jury asked
whether the times and dates of phone calls listed in
communication facility offenses Counts 34, 40, and 45 were
“meant to be” particular recorded phone calls entered into
evidence. For example, the jury note stated: “Count 34 — listed
[on the verdict form] as March 5, 2004 10:43 a.m. No such call
28
exists. Is this meant to be call # 2877 on March 6, 2004 10:43
a.m. [which date and time is listed in the indictment]?”
(emphasis added). The jury asked similar specific questions
about Counts 40 and 45 regarding a.m./p.m. and 2-minute
differences, respectively. The jury note also stated: “Count 41
— listed [in the indictment and verdict form] as March 10, 2004
11:37 am. We can find no such call. Please advise on the
location or corrected call [number].” Over defense objections
to impermissible variances between the evidence and the
indictment, the district court answered “yes” as to counts 34, 40,
and 45. As to Count 41, the district court stated: “The answer is
that activation # 3594, March 10, 2004, at 11:37 a.m. was
introduced into evidence and played in Court, but was
inadvertently not included in those previously provided to the
jury. It is now provided.”
Jury Notes 3 & 4. At 9:30 a.m. on June 1, 2006, the jury
asked about phone calls listed in communication facility
offenses Counts 57, 59, and 62. The jury note stated: Count 57
was “listed [in the indictment and the verdict form] as April 7,
2004 7:09 p.m.” but “[n]o such call exists.” “Is this meant to be
call # 8459 at April 7, 2004 7:07 p.m.?” As to Counts 59 and
62, the jury note stated that “no . . . call exists” for the date and
time listed in the verdict form and asked the district court:
“Please advise to the intended call.” At 11 a.m., the jury sent a
fourth note asking about phone calls listed in communication
facility offenses in Counts 46, 47, and 63–67. As to the dates
and times listed in the verdict form for Counts 46, 47, and 63,
the jury note stated: “No such call[s] exist[],” and asked: Were
Counts 46, 47, and 63 “meant to be,” respectively, activation
numbers 5659, 5830, and 13554? For Count 64, listed in the
indictment as occurring on or about May 4, 2004 5:24 p.m,
“[t]wo such call[s] exist[]. Is this meant to be call # 13556 May
4, 2004 5:25 p.m. or call # 980 May 4, 2004 at 5:24 p.m.?”
(emphasis added). As to Counts 65, 66 and 67, the fourth note
29
stated: “[P]lease provide activation [numbers] for each count as
it is unclear which calls are intended or whether we have not
been provided with these calls.” Over defense objections that
identifying specific calls was “moving into their deliberations”
and “guid[ing] the jury,” the district court responded “yes” for
Counts 46, 47, 57, and 64. As to Counts 59 and 62, the district
court responded: “The answer is that activation # [8806 and
13472] . . . [were] introduced into evidence and played in
Court.” On Counts 63, 65, 66, and 67, the district court stated
for each Count: “The answer is that count [x] refers to
consensual call [# y] on [z date], which was introduced into
evidence and played in Court.” For example, the district court
stated: “The answer is that count 65 refers to consensual call #T-
47 on May 8, 2004 at 4:40 p.m., which was introduced into
evidence and played in Court.”
Jury Note 5. On June 6, 2006, the jury asked about
Racketeering Act 10(a), which the indictment listed as occurring
“[o]n or about May 4, 2004.” The jury note stated: “Two
activations exist at this period in time (May 4, 2004), please
clarify if this refers to activation # 980 [call at 5:24 p.m.] or T46
[call at 4:42 p.m.]?” (emphasis added) Over defense objection
that answering the question would be improper since neither the
indictment nor the verdict form referred to a specific call in
Racketeering Act 10(a) and would delve into “what members of
the grand jury meant when they indicted this case,” June 6, 2006
AM Trial Tr. at 8, the district court told the jury: “The answer is
activation # T46.”
Jury Note 6. On June 14, 2006, the jury note asked the
district court to “clarify the intended activation numbers” for
Racketeering Acts 6(g) and 6(h), and to “please provide
activation numbers for each call in [Racketeering] Acts 8, 9, &
10 as it is not clear for each of the [twenty-seven] subparts
which call is intended.” Defense counsel renewed their
30
objection and moved for a mistrial on the ground the district
court’s specific responses “allow[ed] the government an
additional opportunity to argue their position to th[e] jury, the
likes of which the defense cannot respond to.” June 14, 2006
AM Trial Tr. at 16. Overruling the objection and denying a
mistrial, the district court told the jury that Racketeering Acts
6(g) and 6(h) “are intended to allege activations 3591 for (g) and
3594 for (h)” and listed the “alleged activation numbers” for
Racketeering Act sub-parts 8(a), 8(c)–(e), 8(g)–(o), 9(a)–(d),
9(f), and 10(c). The district court also told the jury that
“activation 9860 in [Racketeering Act] 9(b) . . . was introduced
into evidence but was not played in court, and it is now provided
to the jury,” and that Racketeering Acts 9(e) and 8(f) did “not
involve an activation.”
We observe preliminarily that Miller and Thomas present
no argument in support of their Fifth Amendment due process
claim, which appears only in an argument heading, and
consequently it is not preserved. See United States v. Hall, 370
F.3d 1204, 1209 n.4 (D.C. Cir. 2004). Further, we need not
address their contention that some responses to the jury notes
resulted in an improper amendment of the superceding
indictment, see generally United States v. Mangieri, 694 F.2d
1270, 1277 (D.C. Cir. 1982) (quoting Gaither v. United States,
413 F.2d 1061, 1071 (D.C. Cir. 1969)); see also United States v.
Dickerson, 705 F.3d 683, 694 (7th Cir. 2013), even if untimely
raised in their reply brief, see (George) Wilson, 605 F.3d at
1035, because we are vacating potentially affected counts on
other grounds.
When presented with factual questions from a deliberating
jury, a trial judge must be careful not to “attempt[] to override
or interfere with the jurors’ independent judgment in a manner
contrary to the interests of the accused.” See United States v.
Martin Linen Supply Co., 430 U.S. 564, 573 (1977). This limit
31
on the trial judge’s discretion ensures “independent jury
consideration of whether the facts proved established” the
crimes charged. See Carella v. California, 491 U.S. 263, 266
(1989). Both the Supreme Court and this court have elaborated
on why “[t]his privilege of the judge to comment on the facts
has its inherent limitations.” Quercia v. United States, 289 U.S.
466, 470 (1933); see United States v. Thomas, 449 F.2d 1177,
1181 (D.C. Cir. 1971) (en banc); see also Ayeni, 374 F.3d at
1319–20 (Tatel, J., concurring). As in Ayeni, the issue “is not
whether district courts have the discretion [to respond to jury
questions] . . . but whether the court’s action here fell within the
scope of that discretion.” Ayeni, 374 F.3d at 1316. “[A] trial
judge is not a ‘mere moderator,’ but rather is charged with
assisting the inexperienced laypersons who will render a verdict
in understanding the nature and import of the often complex and
always conflicting evidence presented at trial.” United States v.
Duran, 96 F.3d 1495, 1506 (D.C. Cir. 1996); accord Quercia,
289 U.S. at 469–70. At the same time, “[t]he influence of the
trial judge on the jury ‘is necessarily and properly of great
weight’ and ‘his [or her] lightest word or intimation is received
with deference, and may prove controlling.’” Quercia, 289 U.S.
at 470 (quoting Starr v. United States, 153 U.S. 614, 626
(1894)). This court’s analysis in Ayeni is instructive.
In Ayeni, 374 F.3d at 1314, the jury, after announcing it was
deadlocked, responded to the district court’s invitation to
identify areas of disagreement and asked the district court two
factual questions: (1) Why a handwriting expert had been called
to testify, and (2) Whether the parties agreed that Ayeni’s
signatures in the witness voucher record books were authentic.
Over Ayeni’s objections, the district court allowed both sides to
present supplemental arguments to the jury on these questions,
and instructed before and after the supplemental arguments that
the jury was not to “place undue emphasis on these
supplemental arguments,” but to consider them together with the
32
evidence, instructions, and other arguments the jury had heard.
Id. (internal quotation marks omitted). On appeal, this court
agreed with the government that the district court has broad
discretion in controlling the jury during deliberations, including
authority to decide what to do when a jury encounters stumbling
blocks in its deliberations, but reversed the conviction, noting
this discretion has limits. Id. at 1316 (citing Brasfield v. United
States, 272 U.S. 448, 449–50 (1926) (trial judge cannot inquire
about the numerical division of the jury) and Thomas, 449 F.2d
at 1186 (trial judge may not give “Allen” charge to a deadlocked
jury)). The court concluded that supplemental arguments were
“an inappropriate response” because the judge could have
answered the first question either by telling the jury that the
handwriting expert was called because the parties disputed the
authenticity of signatures or that the court could not answer the
question because trial strategy was not a proper concern of the
jury, and a complete answer to the second question was “no.”
Id. “Given these other options,” the court held “it was an abuse
of discretion for the district court to adopt an approach that, in
effect, allowed the lawyers to hear the jury’s concerns and then,
as if they were sitting in the jury room themselves, fashion
responses targeted precisely to those concerns.” Id. The court
noted that the prosecutor’s supplemental argument included a
new argument not made in closing and suggested an explanation
for the expert’s equivocation about the authenticity of the
signatures that the expert had not offered. Id. Reversal of
Ayeni’s conviction was required, the court concluded, because
“there is no way to know whether the supplemental arguments
produced the jury’s verdict.” Id. at 1317.
The district court’s responses to the jury notes in the instant
case fall into two categories: confirming the identification in the
jury note of what was intended by the charge in the indictment,
and directing the jury to evidence previously unidentified by the
jury as supporting the charge in the indictment. The line
33
between judicial clarification and impermissible judicial
interference with the jury’s fact-finding may not always be clear,
and we do not doubt that jury questions can present “a difficult
task” for the district court in “proceed[ing] circumspectly,”
United States v. Walker, 575 F.2d 209, 214 (9th Cir. 1978). We
conclude the first category of response is less problematic than
the second, but both were error.
The first category of response is illustrated by some of the
district court’s responses to Jury Notes 1 and 2 when the district
court confirmed what the jury’s notes had identified as the
specific phone calls that the grand jury had intended to be
associated with the indicted charges. Such confirmation likely
eliminated possible confusion in a case involving thousands of
phone recordings, racketeering counts with subparts, and
differences at times between the date and time listed in the
indictment and in the jury verdict form (e.g., Counts 21, 34, 46,
and 47). Also, in responding about Count 41, the district court
eliminated confusion about a played call inadvertently not sent
to the jury (activation # 3594) that matched the date and time
listed in the indictment. Moreover, although the defense
repeatedly objected to the district court’s proposed responses,
defense counsel did not disagree that the specific calls identified
in the jury notes were properly associated with the questioned
charges.
Still, the district court’s “Yes” responses in effect told the
jury that it need not look beyond the phone calls identified in the
jury notes — which sometimes took place several hours earlier
or later than the time listed in the indictment — in order to
convict the defendants of those charged offenses. For example,
in responding to Jury Note 1, the district court confirmed that
the call in Count 19 was “meant to be” a call that occurred
nearly 12 hours earlier than was listed in the indictment. The
same was true of the responses regarding Counts 20 and 40. At
34
other times, the district court confirmed that the calls in Counts
21 and 34 were “meant to be” the specific calls identified by the
jury, which occurred at the date and time listed in the
indictment. Whether a call occurred “on or about” the date and
time listed in the indictment was a factual question for the jury
to resolve. In most instances, the specificity of the jury’s
questions may have minimized the risk that the district court
improperly interfered with the jury’s deliberations because the
specificity indicated that the jury had focused on the identified
call and had tentatively concluded that the grand jury intended
the call to support the questioned count. Cf. United States v.
Harvey, 653 F.3d 388, 398 (6th Cir. 2011). Even so, the notes
did not disclose whether there was any disagreement among
jurors about which calls supported which charges. It was error
for the district court to endorse the jury’s preliminary, possibly
non-unanimous, interpretation of the indictment. Cf. Quercia,
289 U.S. at 470.
The second category of response is far more problematic
because the district court directed the jury to evidence
supporting the charges about which the jury inquired. This went
beyond confirmation of the relevant phone call identified in the
jury note. Instead, the district court provided the jury with facts
about a specific call that the jury note had not already identified
as supporting the questioned charge. In Jury Notes 3 through 6,
the jury was asking to be told which calls were intended to
support Counts 59, 62, 65, 66, and 67, and Racketeering Acts 6,
8, 9, and 10. A trial judge has discretion to decide whether and
to what extent the jury may view transcripts of trial testimony,
United States v. (Ralph) Wilson, 160 F.3d 732, 748 (D.C. Cir.
1998), and to provide instructions when a jury encounters
stumbling blocks, see United States v. Laing, 889 F.2d 281, 290
(D.C. Cir. 1989); United States v. James, 764 F.2d 885, 890
(D.C. Cir. 1985). But that discretion does not extend to
directing the jury to the evidence that supports a charged count
35
or racketeering act. The latter is advocacy, see Blunt v. United
States, 244 F.2d 355, 365 (D.C. Cir. 1957), and “in words,
substance and effect, unwittingly mandate[s] that certain facts
— central to the prosecution’s case — be taken as true,” United
States v. Argentine, 814 F.2d 783, 787–88 (1st Cir. 1987).
The district court’s responses to Jury Note 3 are illustrative.
For Count 59 charging Miller with unlawful use of a
communication facility on or about April 15, 2004, at 6:30 p.m.,
the district court pointed the jury to activation # 8806, a call that
took place six days before, on April 9, 2004, at 6:31 p.m.
Absent that new fact, the jury reasonably could have found that
a difference of six days between the time listed in the indictment
and the time of activation # 8806 meant that activation # 8806
did not occur “on or about” (or “reasonably near,” as the district
court instructed) the time charged and the prosecution therefore
had failed to meet its burden of proof on Count 59. The district
court’s response foreclosed that independent evaluation of the
evidence by the jury. The same is true for Count 63 charging
Thomas with unlawful use of a communication facility on or
about May 4, 2004 at 5:20 p.m. In responding whether Count 63
was “meant to be [the call identified by activation] # 13554 May
4, 2004 5:18 pm,” the district court directed the jury to call # T-
46, which took place on May 4, 2004, at 4:42 p.m. Although the
time difference is not as great as in Count 59, it was for the jury
to decide whether call # T-46 supported Count 59 or, instead,
did not occur “on or about” the time listed in the indictment; it
reasonably could have focused instead on other calls that took
place closer to the time listed in the indictment. Other responses
to Jury Notes 3, 4, 5, and 6 also reflect that the district court
directed the jury to the evidence of a call that the jury notes had
not previously identified to support a charge. In response to
Jury Notes 3 and 4 the district court identified the “the intended
call[s]” for Counts 59 and 62 and the calls that Counts 65, 66
and 67 “refer[red] to.” In response to Jury Note 5 about which
36
of two calls supported Racketeering Act 10(a), the district court
told the jury which call was intended. The same type of
response occurred for Jury Note 6, with the district court telling
the jury which specific calls were intended for each of several
racketeering act sub-parts.
More troubling still, the record indicates that in both
categories of responses the district court was conveying the
prosecution’s view of what calls the grand jury intended to
support the counts and racketeering acts mentioned in the jury’s
notes. The parties and the district court were bound by the four
corners of the indictment in ascertaining the grand jury’s intent.
Once deliberations had begun, it was the jury’s exclusive
province to interpret the intended scope of the indictment in
deciding whether the prosecution had met its burden of proof on
each charged offense. Cf. United States v. Evanston, 651 F.3d
1080, 1086–88 (9th Cir. 2011); Argentine, 814 F.2d at 787. By
conveying the prosecution’s view of the grand jury’s intent, the
district court improperly permitted the prosecution to make a
supplemental argument to the jury. Cf. Ayeni, 374 F.3d at 1316.
The government maintains that Miller’s and Thomas’
objection to the responses “rests on a misunderstanding of what
the district court actually did.” Appellee’s Br. 96. In
responding to the jury’s questions, the government insists that
the district court “did not ‘assist[] or coach[]’ the jury by
providing the government’s view of what evidence was
generally ‘relevant’ to the jury’s consideration of the charges.
Instead, the court was ensuring that the jury understood what
the charged conduct actually was, so that the jury could evaluate
that conduct in the light of all of the evidence.” Id. (alterations
in original) (emphasis added) (citations to Appellants’ Brief
omitted). This characterization, however, highlights what was
impermissible about the district court’s responses: In responding
to questions regarding the various counts and racketeering acts,
37
the district court was instructing the jury on the specific phone
calls that the grand jury intended to support specific offenses.
And, to the extent the district court conveyed the prosecution’s
view of “what the charged conduct actually was,” id., the district
court permitted an inappropriate supplemental argument by the
prosecution, see Ayeni, 374 F.3d at 1316. The prosecution’s
opportunity to assist the jury in analyzing the evidence was
during closing argument. Cf. Moore, 651 F.3d at 52–53.
We note that the government has not argued that the district
court’s responses were proper because the superceding
indictment charged specific offenses “on or about” certain dates
and times and the prosecution simply decided to drop alternative
evidence that fit those times in order to ensure jury unanimity.
During oral argument the government expressly declined to
advance this line of reasoning, and the court therefore has no
occasion to determine its validity. Instead, the government
insisted that the district court’s responses properly instructed the
jury about the grand jury’s intent. But an instruction about the
grand jury’s intent was not proper because there was no
evidence beyond the four corners of the superceding indictment
of what that intent was.
We hold that in responding to the jury’s notes the district
court abused its discretion by instructing the deliberating jury
on the grand jury’s intent on the tainted charges. The first
category of response was in the nature of confirmatory
agreement, while the second category was in the nature of
affirmative advocacy. Although different as a matter of
degree, both types of responses were error and neither was
harmless. Other options were available to the district court, for
instance instructing the jury that the court could not answer
questions seeking confirmation of the grand jury’s intent,
because the jury had to decide for itself whether the
prosecution had met its burden of proof. The government’s
38
suggestion of harmlessness, because “the [district] court did no
more than identify properly admitted evidence, and specify
which charge it related to, without further comment,”
Appellee’s Br. 99, does not accurately reflect the dialogue that
occurred. Moreover, a general instruction, such as the district
court gave in responding to Jury Notes 3 and 4, that the jury
may use any evidence it deems relevant in determining
whether the elements of the offense have been proved beyond
a reasonable doubt, is inadequate to cure the harm. Given the
district court’s imprimatur, see Quercia, 289 U.S. at 470,
regarding the phone calls supporting the charges about which
the jury inquired, “there is no way to know whether the
[district court’s responses] produced the jury’s verdict,” Ayeni,
374 F.3d at 1317, on those charges.
Accordingly, we vacate Miller’s convictions on Counts 19,
20, 34, 40, 46, and 59 and Thomas’ convictions on Counts 46,
47, 63, 64, 65, 66, and 67. We do not vacate Count 41 because
the district court’s response was purely administrative,
providing the jury with the played call identified in the jury
note that inadvertently had not been sent to the jury prior to its
commencement of deliberations. Although the district court’s
responses tainted Racketeering Acts 6, 8, 9, and 10, which
must be vacated, Thomas’ RICO conspiracy conviction is
supported by the guilty verdicts on Racketeering Acts 1 and 5,
see supra Part VI, which show the requisite pattern of
racketeering activity, see United States v. (Gregory) Thomas,
114 F.3d 228, 250–51 (D.C. Cir. 1997) (citing 18 U.S.C.
§§ 1961(5), 1962).
IX.
Effect of Cumulative Errors. Contrary to their
contention, the errors did not “exert a cumulative effect such
as to warrant reversal” of all of Miller’s and Thomas’
39
convictions. See Brown, 508 F.3d at 1076 (quoting United
States v. Jones, 482 F.2d 747, 749 n.2 (D.C. Cir. 1973)). The
government’s evidence on the charges of which Miller and
Thomas were convicted consisted, among other things, of their
own incriminating words and actions as captured in the tape
recordings of numerous phone calls and further corroborated
by the seized physical evidence. The district court’s errors in
admitting overview, lay opinion, and co-conspirator statement
testimony, combined with the prosecution’s submission of
unplayed and unredacted tapes to the jury contrary to the
district court’s ruling, do not diminish the strength of this
evidence. Limiting cross-examination of the cooperating
witness on two occurrences thirty years ago was not error, and
the errors in responding to the jury’s notes were confined to the
specific charges that we are vacating. Viewed cumulatively,
the errors do not demonstrate that Miller and Thomas were “so
prejudiced,” Egan v. United States, 287 F. 958, 971 (D.C. Cir.
1923), as to deny them a fair trial. See Celis, 608 F.3d at 847
(citing Egan, 287 F. at 971).
X.
Thomas’ Life Sentences. The jury convicted Thomas of
conspiracy to distribute and possess with intent to distribute
500 grams or more, but less than five kilograms, of cocaine.
The maximum statutory term of imprisonment for that quantity
is forty years. 21 U.S.C. § 841(b)(1)(B). At sentencing, the
district court “credit[ed] Tyrone[’s] testimony that the
conspiracy was for five [kilograms],” Nov. 28, 2007
Sentencing Tr. at 6, and upon applying a sentencing guidelines
range of thirty years to life for narcotics conspiracy, sentenced
Thomas to life terms. Thomas challenges these sentences, and
the government has conceded the error:
40
The government agrees that appellant Thomas’s life
sentences for narcotics conspiracy (21 U.S.C. § 846)
and RICO conspiracy (18 U.S.C. § 1962(d)) were
entered in violation of Apprendi v. New Jersey, 530
U.S. 466 (2000), because the district court imposed a
sentence beyond the statutory maximum authorized
by the jury’s findings as to the amount of cocaine for
which Thomas was responsible.
Appellants’ Reply Br. 2 n.1 (stating that government requested
its concession appear in the Reply Brief).
Accordingly, we vacate Miller’s convictions on Counts 19,
20, 34, 40, 46, and 59 and Thomas’ convictions on Counts 46,
47, 63, 64, 65, 66, and 67. In view of the government’s
concession, we also vacate Thomas’ life sentences for
narcotics conspiracy and RICO conspiracy, and we remand for
resentencing of Thomas, see United States v. Coumaris, 399
F.3d 343, 351 (D.C. Cir. 2005). Otherwise we affirm the
judgments of conviction.