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United States v. Vera

United States Court of Appeals, Ninth Circuit

October 22, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
SALVADOR REYES VERA, AKA Magic, AKA Albert Vera Reyes, AKA Sas, AKA Salvador Vera, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ARMANDO REYES VERA, AKA Mando, AKA Armando Vera, Defendant-Appellant

Argued and Submitted, Pasadena, California May 12, 2014.

Page 1233

Appeal from the United States District Court for the Central District of California. D.C. No. 8:08-cr-00280-JVS-1, D.C. No. 8:08-cr-00280-JVS-2. James V. Selna, District Judge, Presiding.

SUMMARY[*]

Criminal Law

The panel affirmed in part and vacated in part the district court's judgments, and remanded for further proceedings in a case in which Salvador Reyes Vera and Armando Reyes Vera were convicted of a drug conspiracy and use of a minor to commit a drug trafficking offense.

Two case agents testified at the defendants' joint trial, one as a gang expert and the other as an expert in drug jargon who translated wiretapped phone calls into drug quantities and amounts. The panel affirmed the admission of the gang testimony. But because the testimony interpreting the recorded calls intermingled lay and expert opinion, the panel held that the district court's failure to explain the distinction to the jury constituted plain error. The panel held that this intermingling resulted in the admission of improper expert and lay opinions, which also constituted plain error. Because these errors affected the drug quantities found by the jury in a special verdict, and therefore the mandatory minimum sentences the defendants faced, the panel held that they affected the defendants' substantial rights and seriously affected the fairness of the judicial proceedings. The panel therefore vacated the drug quantity findings and the defendants' sentences. The panel affirmed the remainder of the jury verdict.

The panel also addressed the appropriate remedy when trial errors affect the jury's drug quantity findings but not the underlying conspiracy convictions. Because drug quantity is not an element of the conspiracy offense, the panel did not vacate the defendants' conspiracy convictions. The panel further held that, under these circumstances, the Double Jeopardy Clause does not preclude retrial of the drug quantity issue. The panel therefore vacated the special verdict only, and remanded for proceedings. The panel wrote that on remand the government may elect to retry the drug quantity issue or may seek a resentencing based solely on the defendants' convictions.

Gretchen Fusilier, Carlsbad, California, for Defendant-Appellant Salvador Reyes Vera.

Thomas Paul Sleisenger, Los Angeles, California, for Defendant-Appellant Armando Reyes Vera.

André Birotte Jr., United States Attorney, Robert E. Dugdale, Chief, Criminal Division, Dennise D. Willett, Chief, Santa Ana Branch Office, Michael Anthony Brown (argued), Assistant United States Attorney, United States Attorney's Office, Santa Ana, California, for Plaintiff-Appellee United States of America.

Before: John T. Noonan, Jr., Kim McLane Wardlaw and Raymond C. Fisher, Circuit Judges. Opinion by Judge Fisher.

OPINION

Page 1234

FISHER, Circuit Judge:

This appeal requires us to revisit issues that arise when law enforcement officers

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offer both expert and lay opinion testimony interpreting the meaning of intercepted telephone calls. We again emphasize that such expert opinions must rest on reliable methodology; that such lay opinions may not be supported by speculation or hearsay, or interpret unambiguous, clear statements; and that the jury must be instructed on how to appropriately evaluate each form of testimony offered by the officer.

Defendants Salvador Reyes Vera and Armando Reyes Vera appeal their convictions and sentences for drug conspiracy and use of a minor to commit a drug trafficking offense.[1] Two case agents testified at the defendants' joint trial, one as a gang expert and the other as an expert in drug jargon who translated wiretapped phone calls into drug quantities and amounts. We affirm the admission of the gang testimony but reach a different conclusion regarding the testimony interpreting the recorded calls. Because that testimony intermingled lay and expert opinion, the district court's failure to explain the distinction to the jury constituted plain error. Additionally, this intermingling resulted in the admission of improper expert and lay opinions, which also constituted plain error. Because these errors affected the drug quantities found by the jury in a special verdict, and therefore the mandatory minimum sentences the defendants faced, they affected the defendants' substantial rights and seriously affected the fairness of the judicial proceedings. Accordingly, we vacate the drug quantity findings and the defendants' sentences. We affirm the remainder of the jury verdict.

We also address the appropriate remedy when trial errors affect the jury's drug quantity findings but not the underlying conspiracy convictions. Because drug quantity is not an element of the conspiracy offense, we need not vacate the defendants' conspiracy convictions. We further hold that, under these circumstances, the Double Jeopardy Clause does not preclude retrial of the drug quantity issue. We therefore vacate the special verdict only, and remand for proceedings consistent with this opinion. On remand, the government may elect to retry the drug quantity issue or may seek a resentencing based solely on the defendants' convictions.[2]

I. Background

In 2007, acting on a tip from confidential informant Gerardo Reyes, the Santa Ana Gang Task Force began investigating drug trafficking in Bishop Manor, a high-density apartment complex within the territory of the Minnie Street Lopers gang. Reyes' tip and the resulting investigation brought the defendants to the task force's attention. Based on the tip, some initial surveillance and a few initial controlled purchases, the agents believed that Salvador and Armando were involved in the illegal distribution of several controlled substances. To further the investigation, in May 2008, the task force began wiretapping cell phones used by the defendants and their minor nephew, Ramon Vera, also known as " Ojitos" or " Little Bear." All told, the investigation intercepted thousands of calls and, through contemporaneous surveillance, corroborated certain aspects of the calls -- for example, who the speakers were and where they were meeting. Reyes also completed a controlled purchase from Armando of around 24

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grams of heroin, the only physical evidence of narcotics seized during the investigation.

The Vera brothers were arrested in October 2008 and indicted a few months later, as were several co-defendants. In January 2012, a federal grand jury returned a three-count superseding indictment against the defendants. Count 1 charged Salvador and Armando with conspiracy to distribute and to possess with intent to distribute heroin, cocaine, cocaine base and methamphetamine.[3] Counts 2 and 3 charged Salvador (Count 2) and Armando (Count 3) with using a minor to commit a drug trafficking offense. See 21 U.S.C. § § 841(a)(2), 846, 861(a)(1).

The wiretapped phone calls were the government's primary evidence during the five-day trial; over 70 recorded calls were either played for or read to the jury. Additionally, the two case agents primarily responsible for the investigation were called to testify. FBI Agent Daniel Lavis, the government's key witness, testified about the investigation, the surveillance that was conducted, narcotics prices, how law enforcement agents use confidential informants, Bishop Manor and the surrounding area, how wiretaps are obtained and how they work, phone technology, the phones that were wiretapped in this case, the identity of participants in the wiretapped calls and their relationships, and code words used by the participants in the wiretapped calls. Lavis also opined about the meanings of most of the recorded calls as they were played or read, identifying voices and nicknames, and interpreting the conversations as referring to specific quantities of particular controlled substances. The other case agent, Detective John Franks, testified about gang structure and practices generally, the Minnie Street Lopers specifically, and the inferences he drew about Salvador's role within the Lopers organization. Franks also testified about the investigation and his observations while conducting surveillance.

Reyes, the confidential informant, testified as well. He gave details regarding the controlled purchase of heroin he made from Armando and explained the structure of the defendants' drug dealing organization, from which he had purchased drugs for many years and for which he had, at times, acted as a lookout. He further explained that Salvador was the highest ranking member of the Minnie Street Lopers gang in the area. Reyes testified that Salvador maintained control of narcotics trafficking in that area by giving only certain dealers permission to sell narcotics. Anyone else caught dealing would be " beat up." Reyes testified that Armando was Salvador's " number two man" and handled most sales, and that Salvador used his nephew and other minors as drug runners.[4]

The defense did not call any witnesses or introduce any evidence except a stipulation that a particular intercepted phone call did not concern cocaine base, as Lavis had testified, but actually concerned powder cocaine. The defendants essentially conceded guilt on the conspiracy count, focusing their closing arguments on the adequacy of the government's proof of

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drug type and quantity, and characterizing the jury's role as answering " an accounting question."

The jury found the defendants guilty on all counts and issued a special verdict holding both defendants responsible for 100 grams or more of heroin, 500 grams or more of cocaine and 280 grams or more of cocaine base. Both defendants were sentenced to the low end of their respective guidelines ranges: 360 months' imprisonment for Salvador and 210 months' imprisonment for Armando.

II. Franks' Testimony

The defendants contend that Detective Franks' testimony as both a gang expert and a percipient witness to the events in his investigation violated their Confrontation Clause rights and Federal Rule of Evidence 403.[5] We review the district court's rulings on the Confrontation Clause de novo and on Rule 403 for abuse of discretion. See United States v. Gomez, 725 F.3d 1121, 1125 (9th Cir. 2013); United States v. Hankey, 203 F.3d 1160, 1166-67 (9th Cir. 2000). We hold that admitting Franks' gang testimony did not constitute reversible error.

A. Confrontation Clause

The Supreme Court held in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that a defendant's Confrontation Clause rights are violated by the admission of " testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination." Id. at 53-54. Nevertheless, an expert witness may offer opinions based on such inadmissible testimonial hearsay, as well as any other form of inadmissible evidence, if " experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject." Fed.R.Evid. 703. Moreover, the expert may disclose to the jury the inadmissible evidence relied on in forming his opinion " if [its] probative value in helping the jury evaluate the opinion substantially outweighs [its] prejudicial effect." Id.

Under these rules, there is generally no Crawford problem when an expert " appli[es] his training and experience to the sources before him and reach[es] an independent judgment." Gomez, 725 F.3d at 1129 (quoting United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009)). But an expert exceeds the bounds of permissible expert testimony and violates a defendant's Confrontation Clause rights when he " is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation." Id. (quoting Johnson, 587 F.3d at 635). Accordingly, the key

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question for determining whether an expert has complied with Crawford is the same as for evaluating expert opinion generally: whether the expert has developed his opinion by " applying his extensive experience and a reliable methodology." United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003).

The Second Circuit's opinion in United States v. Mejia, 545 F.3d 179 (2d Cir. 2008), illustrates how case agent expert testimony can violate a defendant's Confrontation Clause rights. The defendants in Mejia were members of the MS-13 gang who were being tried for racketeering and related charges. See id. at 183. An agent qualified as a gang expert, see id. at 193-94, identified custodial interrogations of MS-13 members as at least a partial basis for his testimony " that MS-13 taxed non-member drug dealers," " that MS-13 treasury funds were used to purchase narcotics and that MS-13 members used interstate telephone calls to coordinate activities." Id. at 199. This testimony was directly relevant to several material issues in the case, including whether MS-13 was an enterprise, had an effect on interstate or foreign commerce or engaged in narcotics trafficking. See id. at 200.

The agent's testimony violated the Confrontation Clause, however, because he presented testimonial hearsay " in the guise of an expert opinion," id. at 199 (quoting United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007)), rather than presenting the information to explain a bona fide expert opinion. The Mejia court was " at a loss in understanding how [the agent] might have 'applied his expertise' to these statements before conveying them to the jury." Id. Most problematically, the agent's drug tax testimony " was based directly on statements made by an MS-13 member in custody (during the course of this very investigation)." Id. (emphasis omitted). To form his drug tax opinion, therefore, the agent did not have to conduct a " synthesis of various source materials" or apply any of " his extensive experience [or] a reliable methodology." Id. at 197 (quoting Dukagjini, 326 F.3d at 58) (internal quotation marks omitted). Instead, the agent " communicated out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion." Id. at 198 (quoting Lombardozzi, 491 F.3d at 72). The agent's direct repetition of testimonial hearsay about the drug tax " impugn[ed] the legitimacy of all of his testimony," leading the court to suspect he had merely summarized an investigation conducted by others, rather than applying his expertise to draw his own conclusions. Id. at 199. The court therefore held that the agent's " reliance on and repetition of out-of-court testimonial statements made by individuals during the course of custodial interrogations violated [the defendants'] rights under the Confrontation Clause of the Sixth Amendment." Id.

Here, Detective Franks testified both as a gang expert witness and as a percipient witness regarding his observations during the investigation. Specifically, he testified that Bishop Manor fell within the territory of the Minnie Street Lopers gang and that the gang maintained control over narcotics sales within Bishop Manor and the surrounding areas by requiring any non-member drug dealers in the area to pay a tax. Because he knew from reviewing intercepted telephone calls that Salvador did not pay taxes to anyone else in the neighborhood, Franks concluded that Salvador was " one of the leaders of the narcotics trade in Bishop Manor." He also testified about a recorded phone call between Salvador and a friend that was played for the jury, opining that a rival gang was trying to tax Salvador because they believed his

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friend was selling drugs within their territory. Because the leader of one neighborhood gang is generally the person who pays taxes to the higher-ranking gang in another area, Franks opined that Salvador was " [m]ore than likely the leader" of the Minnie Street Lopers in Bishop Manor.

The defendants contend that Franks exceeded the bounds of permissible expert testimony by " serving as a conduit for admission of hearsay in violation of Crawford." They argue that by testifying that the Minnie Street Lopers controlled narcotics trafficking within Bishop Manor and " were able to force non-members dealing drugs there to pay a tax," Franks directly " imparted important testimonial facts gleaned from his exposure to gang members and affiliates" without applying any independent judgment. Id. We disagree and hold that Franks' testimony fell within the bounds of permissible expert opinion.

First, Detective Franks applied his experience to his observations to form expert opinions about the Minnie Street Lopers and their tactics. Franks testified he had extensive training about and experience with gangs, including some formal classroom training, his time on the Santa Ana Gang Task Force and his work at the Santa Ana Police Department as a gang homicide investigator and gang suppression detective. He was familiar with the Minnie Street Lopers gang in particular from his contacts with members when he worked as a deputy sheriff in the jail, when he patrolled the area and when he transferred to the gang unit of the Santa Ana Police Department. Unlike the gang expert in Mejia, nothing in Franks' testimony suggests that he was directly repeating what someone else told him about the Minnie Street Lopers during this or any other investigation. Rather, his testimony that gangs " control the narcotics trafficking in an area" by maintaining control " of selling drugs to buyers" and " of the money," and by requiring " other drug dealers in that area that are not part of that gang" to " pay what's ...


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