*1 ruling encompassed properly applied the law of Judge Rothstein’s the case doc- trine.” facts: following pro- filed an initial 1. The Four Tribes I prior continue the belief that our ceeding seeking to exclude wa- correct, conclusion is and that the law of Whidbey ters west of Island from precludes the case doctrine expan- further the Lummi U & A. id. at 2. See Lummi I sion U & A. would affirm the district court. Coyle summary Judge granted judg- 2. Tribes, the Four
ment favor of to judg-
but never reduced his order
ment. See id. subsequently
3. The Lummi filed a
“Cross-Request For Determination”
seeking to include within its U & A Whidbey the waters west of Island. America, UNITED STATES of See id. Plaintiff-Appellee, Judge 4. Rothstein viewed the initial v. proceeding filed the Four Tribes seeking to exclude the waters west Anthony GADSON, Anthony aka Whidbey Island and the cross- Gadsen, Defendant- request determination filed Appellant. Lummi seeking to include the America, United States Whidbey
waters west of Island as Plaintiff-Appellee, request the one and the same —to if determine the waters west of Whidbey Island were included Wilson, Defendant-Appellant. Willie Lummi U & A. See id. at 6. 12-30007, Nos. 12-30047. Judge 5. interpreted Judge Rothstein Coyle’s decision as law of the case Appeals, United States Court of areas, disputed including Ninth Circuit. Island, Whidbey the waters west of Argued Aug. and Submitted 2013. were not within the Lummi & A. U Lummi, See 447. Aug. Filed appeal Judge ruling, On Rothstein’s only
we reversed to the extent that her
ruling Admiralty excluded Inlet from the so, doing
Lummi U & A. In we described
Admiralty “consisting] Inlet as of the wa- Island, Whidbey
ters to the west of sepa-
rating that island from the Olympic Penin-
sula. ...” Id. at 452. It stands to reason any portion other of the waters west Whidbey Island that were included description our remain excluded from Lummi,
the Lummi U & A. In we had no
difficulty “concluding Judge Rothstein *7 evidentiary rulings, challenge various
they instruc- of certain the correctness as to evidence sufficiency of the tions, the counts, sentencing determinations. and two convictions. affirm the We CA, Sacramento, De- for Balazs, John I Anthony Gadson. fendant-Appellant March from During period CA, Sacramento, Defen- for Hart, Krista at 2010, a residence February through Wilson. dant-Appellant Willie Alaska, Fairbanks, Fouts Avenue Ra- Mythili (argued), A. Heller Kirby trafficking opera- drug hub of a was General, Attorney Assistant man, Acting brothers, and Joshua Brandon Two tion. Acting Deputy Assis- Mclnerney, Denis J. Edwards, lived Donte along with Haynes, Division, General, Criminal Attorney tant Gadson, a brother Fouts house.1 at the Justice, Department States United Haynes, visited Joshua Brandon and Loeffler, D.C.; L. Karen Washington, time, he lived though from time house F. Attorney, Elizabeth States United Wilson, cousin Anchorage. At- States United Crail, Assistant Special Gadson, joined Haynes brothers United Assistant Cooper, Stephen torney, Powell 2009. Joe group November AK, for Plain- Anchorage, Attorney, and would group with involved also tiff-Appellee.' behalf complete transactions sometimes Haynes. Brandon trial, Joshua testimony at According at crack cocaine regularly sold Haynes ten Joshua made house. near the Fouts dur- to Joshua of cocaine Voaklander sales half and summer spring ing KOZINSKI, Chief ALEX Before: During by Gadson. were which witnessed S. BERZON MARSHA Judge, and Gadson which one of transactions Judges. IKUTA, Circuit S. SANDRA an assault displayed Joshua present, his couch cushions under hidden rifle OPINION “for Voaklander, said was which Joshua through the somebody comes when Judge: IKUTA, Circuit door.” front ap- Wilson Willie Anthony Gadson the cocaine was conspiracy to dis- for of the sources One convictions peal their “Transporter” code name cocaine, with the person grams more than tribute Anchorage up from drugs brought con- who distribute intent possession the two On in Fairbanks. Fouts house of fire- substances, possession trolled *8 Fouts trips Gadson’s occasions conspiracy of their arms in furtherance Transporter’s trips, coincided house substances. controlled and possession $40,000 containing up bags picked re- Gadson his conviction appeals also Wilson Haynes. Brandon $50,000 cash from in appeal, On a witness. against taliation Haynes by confusion. and Joshua refer to 1. We Brandon necessary to avoid where first names their room, point, Transporter At one was-arrested for cocaine, the officers powder found crack, license, heroin, driving marijuana, without a and Gadson com- 156 tabs of ecsta- sy, $13,000 and approximately that his arrest could have in plained “messed cash. A handgun nearby loaded everything up,” meaning “everybody go on the floor. jail.” police While the were searching the house, Fouts Wilson had reached his Avery Thompson, a member of
Officer house, friend’s and informed Edwards Drug the Alaska Statewide Enforcement (who house) also the friend’s about Unit, began investigating drug con- the raid. Edwards and Wilson'drove to early By 2010, in spiracy February Gadson’s house Anchorage in and decided suspected that the Fouts house atwas to stay there until things cooled off in drug operation. the center of a A confi- Haynes Fairbanks. Brandon was also in working dential informant with the investi- Anchorage at the time. After two about gation buys two executed controlled of cot weeks, Fairbanks, Edwards returned to Edwards, caine from one of which took began buying and drugs from Gadson for place driveway in the of the Fouts house. sale. But when Haynes Brandon returned Following buy, Thompson Officer to Fairbanks at the May, end of and re- other members of the police Fairbanks sumed drug location, activities in a new department obtained search warrant for Edwards Haynes switched back to as a the Fouts Although house. no one was in supplier. search, at the time they house saw footprints leading snow point new At some in November away open from the kitchen window. police Sub- used a confidential informant named sequent investigation Donny these Pitka to make a buy revealed controlled Wilson, footprints belonged to from Haynes. and that Brandon Pitka asked Bran- arrived, police when the don to deliver the escaped drugs Wilson to undercover police out the in a window his bare feet and scram- vehicle near Brandon’s new apartment on bled over to a Adams Drive. Brandon friend’s house. had cocaine, Powell deliver police and the Inside, Thompson Officer and the other arrested approached Powell when he police investigators found a shoe box on vehicle. police then in on closed top of the living containing room couch Adams apartment, Drive arrested Bran- approximately cocaine, a kilogram an- don, cocaine, marijuana, discovered ec- containing other shoe box another kilo- $14,000 stasy, oxycontin, and in cash inside gram $29,000 of cocaine and some in cash apartment. drugs. behind the fingerprints Gadson’s Haynes police With Brandon custody, were identified on the second living room began buying again Edwards from Gadson. shoe box. A shotgun loaded and ballistic January In Gadson sold Edwards vests were found near the shoe boxes. of, seven or more ounces By cocaine. cocaine, cocaine, Powder ecstasy, crack March Gadson up moved from An- marijuana, drug paraphernalia, and more chorage Way to 2805 Gillam in Fairbanks. cash money orders were found in vari- April grand jury On a federal indicted ous dining locations the kitchen and Gadson, Wilson, Haynes, Brandon Ed- room. The bedrooms contained more wards, Powell, others. Arrest warrants bedroom, drugs. police one found were issued for the defendants. possessions, including Wilson’s prescrip- pill tion bottles in Wilson’s name and a Officer Thompson picked up Gadson’s ring with Wilson’s initials. Inside that trail at April. conducting the end of After *9 scratches, abrasions, of a number fered at Gadson’s of surveillance days
several day the encounter. The good from observing and bites and Way house Gillam assault, indicative of called Gabriella traffic” Wilson after of “short-term deal hit warrant a search told her dealing, Haynes again he obtained and drug shit,” garage. and Officers and “Donny,” the residence who had “started beginning of at the buy warrant be- controlled executed referenced earlier vest and around a ballistic May and found Haynes. Pitka and Brandon tween They discovered $3,950 in the cash house. 23, 2011, government June On in the unlocked $38,430 bag ain another Gadson, Wilson, with and others charged any recover did not The officers garage. distribute, and conspiracy crimes: five co- amount of appreciable or an firearms distribute, more intent to with possession Way house. Later from the Gillam caine con- cocaine and other grams of than in his vehi- was arrested day, Gadson substances, in violation of U.S.C. trolled $1,300 person. on his another cle with (b)(1)(B), (b)(1)(C), 841(a)(1), 846, §§ days in a later himself few turned Wilson (Count (b)(1)(D) 1); intent possession with outstanding warrant. learning of the after substances, in vio- controlled to distribute items investigation obtained of Further (b)(1)(B), 841(a)(1), § of 21 lation U.S.C. suggested they Way house from the Gillam (Count (b)(1)(D) 2); (b)(1)(C), possession transactions. A drug had been used of and in furtherance Counts of firearms Marley gave positive named dog drug 924(c)(1)(A)© § of 18 U.S.C. violation narcotics when of presence for the alerts (Count 3); retaliate conspiracy to and found Gadson’s with cash presented witness, in violation of 18 against a U.S.C. person. his and on house 5). 1513(e) (Count also government § Gadson, arrests, Ed- their Following kill a attempting to charged Wilson Wilson, were all de- wards, and Powell witness, of 18 in violation U.S.C. wing of Fairbanks in the same tained (a)(2)(B) (Count 6), 1513(a)(1)(B), and § Pitka, had been who Center. Correctional witness, of against a violation retaliation buy that led controlled involved in the 7). 1513(b)(2)(Count § 18 U.S.C. arrest, in the Haynes’s same Brandon After Powell charges. unrelated prison on Gad- found On October attor- role from his about Pitka’s learned conspiracy to guilty of son and Wilson co-eonspira- other spread word ney, distribute, drugs with intent possession of phone of recorded calls In a series tors. distribute, fire- of three possession cousin, Gabriella between Wilson conspiracy arms in furtherance of re- police Haynes, Wilson discussed 3). (Counts 1, 2 also Wilson was mentioning and told Gabriella ports Pitka a wit- against retaliation guilty found here,” using the Haynes that “the Cl’s 7). (Count guilty found Neither was ness in- for a confidential abbreviation standard against witness conspiring retaliate later, days told A few Wilson formant. (Count 5), acquitted and Wilson into go can’t “[s]nitches Gabriella 6). (Count a witness attempting to kill May after the call hallways.” On soon 29, 2011, Gadson received December On Pit- Haynes, assaulted to Gabriella Wilson sentence of 300 months a below-Guidelines hallway. down the walking ka as he was years super- eight imprisonment minutes and was The assault lasted two 10,- attributed court release. The vised the details of Although on video. captured 521,103 drugs to Gadson on grams disputed, recording the video fight are in the Pitka, conspiracy, of his involvement who suf- basis punching shows Wilson *10 included, among the sentence police other that helpful were to Gadson. things, Specifically, a three-level enhancement for hav- Brandon said that it was he $38,000 ing managerial January put who had role. On in cash into Gad- garage son’s at the Way the court sentenced Gillam Wilson house. Brandon also denied that imprisonment given he had years months and five $40,000 Gadson release, bags $50,000, which supervised that sentence also fell contradicted Edwards’s testimony that range. below Guideline The court de- had witnessed those transactions. In addi- give adjust- clined to Wilson a minor role tion, jail Brandon told in Wilson ment, conver- noting that he had been entrusted to “[y]ou sation that and I both know [Gad- guard drugs in and cash the Fouts it,” should not possibly son] be referring house, and that he drugs had sold to Pitka arising case out drug opera- and later assaulted him. tion at the Fouts house. appeal, On Gadson challenge and Wilson subpoenaed Gadson testify Brandon to certain of the district evidentiary court’s trial, at his but Brandon invoked his Fifth rulings They instructions. also right trial, Amendment not testify. At contest the sufficiency of the evidence as Gadson moved to admit Brandon’s state- Finally, they to two counts. challenge the 804(b)(3) ments under Rule of the Federal district court’s sentencing determinations. Rules of Evidence. The district court de- challenges We consider each these motion, ruling nied the that Brandon had turn. given testimony, inconsistent evidence suspect” was “so that “it would II justice be a miscarriage of to permit it.” begin by We addressing Gadson argues Gadson the district court and Wilson’s challenges to the district erroneously interpreted hearsay rules court’s evidentiary rulings. Where those and that the district court thereby abused challenges preserved, have been we review its discretion disallowing the evidence. rulings the district court’s for an abuse of Gadson, According although Brandon’s discretion, uphold they them unless statements were hearsay, they were ad- “illogical, implausible, are sup or without against missible as statements un- interest port in may inferences that be drawn from 804(b)(3) der Rule of the Federal Rules of the record.” United States v. the facts Evidence. Even if those statements did Hinkson, (9th 585 Cir. interest, not qualify against as statements 2009) (en banc). de We review novo the Gadson contends their exclusion district interpretations court’s legal robbed him of his- right constitutional standard for its decision. United States v. present a complete defense. Waters, 351-52 Cir. 804(b)(3) provides Rule that out-of-court 2010). by statements are not excluded the rule against hearsay if the declarant is unavail- A witness, (1) able aas and the statement First, we consider argument Gadson’s “truly self-inculpatory,” meaning it was that the district court abused its discretion “sufficiently against penal the declarant’s admitting certain out-of-court state- person interest that a in the reasonable brother, ments Haynes. Brandon position declarant’s would have made trial, In preparing for learned believing Gadson statement unless it to be States, true,” Brandon had made two statements to v. United Williamson *11 (9th Cir.1997), 928, 933 2431, 114 F.3d guio, 129 603-04, 114 S.Ct. U.S. relationship be- (internal family the close (1994) quotation therefore 476 L.Ed.2d the (2) by supports Gadson supported Brandon and omitted), “is tween marks clearly that Bran- that court’s circumstances district determination corroborating trustworthiness,” trustworthy. Fed.R.Evid. not were its don’s statements indicate 804(b)(3)(B).2 Further, court’s determination the district “suspect” or testimony was that Brandon’s misinter did not court The district testimony by supported unreliable was not abuse and did hearsay rules pret contradictory statements that he had made Bran declining to admit its discretion co-conspirators. and his police to the 804(b)(3). As Rule under statements don’s that matter, agree parties an initial was sufficient argues that there Gadson mean within the unavailable was Brandon state- corroborating Brandon’s evidence 804(b) his invocation of due to Rule ing of $38,000 put ment that had against privilege Amendment his Fifth he cites Way garage. Specifically, Gillam Nevertheless, Bran self-incrimination. to tenant a downstairs from not “should that Gadson statements don’s named “Brandon” that the effect someone given had not it,” that Brandon be apartment, in the previously lived had cash, “truly are not bags of two Gadson usually unlocked. garage that of Rule purposes self-inculpatory” does not make slight This evidence 804(b)(3)(A) expose not they do because Bran- to disallow court’s decision district liability. criminal to himself Brandon implausible, or “illogical, don’s statement (or “curry favor or deflect Statements may be inferences that support without share) scope not fall within blame” do Hinkson, record,” in the from drawn facts Small, 804(b)(3)(A). v. Hernandez of Rule Accordingly, the district at 1251. Cir.2002). (9th 1132, 1141 n. 8 F.3d to admit the three decision not court’s Further, state Brandon’s was not abuse while at issue statements put who had the person ment that he was discretion. Way at the Gillam garage in the
money
the exclusion of Brandon’s
did
self-inculpatory,
Nor
might have been
house
of his constitu
deprive Gadson
statements
reasonably
have
court could
the district
The
to
a defense.
right
present
tional
by
supported
it
not
concluded
that “[a]
has held
defen
Supreme Court
indicating its
corroborating circumstances
is
relevant evidence
right
present
dant’s
exculpa
general,
trustworthiness.
subject
rea
unlimited,
is
rather
not
but
family members “are
tory statements
restrictions,”
and the exclusion
reliable,”
sonable
LaG
highly
considered
be
it
(9th
“only where
is unconstitutional
Stewart,
evidence
v.
rand
weighty
interest
infringed upon
v. Pa-
has
Cir.1998);
see also United
pecuniary interest or
so
proprietary or
had
804(b)(3)
full:
slates in
2. Rule
tendency
great
to invalidate
declar-
following
(b)
Exceptions.
are
The
or to ex-
against
else
claim
someone
ant's
hearsay
against
if the
rule
excluded
liabil-
to civil or criminal
pose the declarant
as a witness:
declarant is unavailable
ity; and
(3)
Against
A state-
Interest.
Statement
corroborating
(B)
supported
circum-
ment that:
clearly
its trustworthi-
indicate
stances
(A)
person in the declarant’s
a reasonable
ness,
case as
in a criminal
is offered
per-
if it
only
made
if the
position would have
because,
expose the declarant
one
tends
it to
true
when
son believed
be
liability.
made,
criminal
contrary to the declarant’s
was so
it
Moore,
Scheffer,
the accused.” United States v.
dog Marley
whose
gave positive
303, 308,
523 U.S.
118 S.Ct.
140 alerts for
presence
of narcotics when
(1998).
L.Ed.2d 413
When
excluded presented with several bundles of cash
“persuasive
evidence does not bear
assur
found at Gadson’s house
person.
and on his
ances
trustworthiness” and is not “criti
Before testifying
jury,
Investiga-
defense,”
Cambra,
cal to the
Chía
tor Moore
extensively
testified
during voir
Cir.2004), its
exclusion
*12
dire
experience
about his
and his dog’s
process
does not violate a defendant’s due
training
reliability
and
in the field. Inves-
Fowlie,
rights, see United States v.
tigator Moore
Marley
and
were certified
(9th Cir.1994)
1059, 1069
(rejecting a due
as a K-9 team in June
Investigator
2010.
process challenge to evidence
un
excluded
Moore testified
he had
that
been
canine
804(b)(3)
der Fed.R.Evid.
because the
handler
May
since
2010 and had received
any
statement lacked
“significant indicia of
four-and-a-half
training.
weeks of
Marley
best”);
reliability”
“tangential
and was
had
been trained
another officer to
284,
Mississippi
Chambers v.
410 U.S.
cf.
heroin,
detect marijuana,
cocaine, and
(1973)
93 S.Ct.
C evidence, by extrinsic id. at such as We now consider claim through testimony Wilson’s that the knowledgeable of a wit by ness, 901(b)(1). district court admitting Thus, erred the re- Fed.R.Evid. where cordings prison phone of the by government calls made audiotape, offers an a wit-
1204 and Wilson. were those of Gadson testify tapes that the may knowledge ness the meth- testified as to be, Thompson a or is Officer purports it is what recording speak- identify odology he had used original. of the copy and accurate true of all Panaro, recordings F.3d first listened 266 ers. He v. States See United wing in the the cell (9th Cir.2001); v. Mou- calls made from phone States United Cir.1980). (9th held were where the defendants ton, prison 1383-84 F.2d re- tape period offers a time during applicable government Where voice, sug- it must clues calls for context the defendant’s scanned those cording of that the voice Offi- identity speaker. facie case prima gesting make also defendant’s, fact voice on tape Thompson cer identified Gadson’s on recog- who of a witness factors: he recording whether means based several extrinsic evi- other with his familiar nizes voice Gadson and was had met Torres, F.2d v. voice, States dence. United he determined “very unique” Cir.1990). the offer- Once to Ga- calls were all of Gadson’s almost burden, proba- “the ing party meets conver- in at least one Haynes, and briella the evidence is matter value of tive sation, Thompson heard Gadson Officer Workinger, jury.” United had which talking about a list items (9th Cir.1996). The dis- 1409, 1415 during from his house been seized abuse its discretion does not trict court only a search, accessible to information mini- that meets the admitting evidence people time. handful Id. for authentication. requirements mum Wilson’s Thompson identified Officer at 1416. ex- recording on other in the based voice Here, Thompson First, testified Thompson Officer trinsic evidence. Officer prison with the tele prisoner that he was familiar heard the voice of different gave detailed system Haynes shortly after Wil- phone calling Gabriella all system regarding recorded the other de- how Because son was admitted. calls, jail log detained, call could be how the been Of- previously had fendants *15 date, bank, phone and on searched based reasonably inferred Thompson ficer number, run how he had and telephone Wilson, the last belonged voice this new times. He testified many such searches ar- drug operation to be of the member than 100 hours of more he reviewed Second, during the time Wilson rested. relating to Gadson prison phone calls unit, he had to segregation the was in Thompson did Although Officer Wilson. tele- requests to use the make written trial at testify the calls introduced not requests timing and the phone, Wilson’s copies prison of the record were accurate calls to the voice’s new corresponded challenged the re ings, neither defendant caller dis- Haynes. Finally, the Gabriella Thomp basis. Officer cordings on this case. Wilson’s particular cussed facts support was “sufficient to testimony son’s sufficiently narrowed Thompson Officer propo that the item is what the finding callers so as possible the universe 901(a), is,” claims it Fed.R.Evid. nent speakers in the support an inference that failing not err in did the district court Gadson and Wilson. these were calls Cf. sponte. this issue sua raise Torres, 996; F.2d at Yin, at 908 F.2d 935 admis- district court’s 1425. Because the abuse Nor the district court did “illogical, not was concluding gov that the sion of discretion in its in infer- support making implausible, or without its burden ernment had carried from facts the may drawn the ences be that the prima facie case voices
1205 Hinkson, record,” calls, 585 F.3d at it did Thompson’s Officer testimony, it. were the evidence. admitting not abuse its discretion See id. Nor did Wilson establish that
Ill the plainly district court in admitting erred tapes the on audibility grounds. “A re multiple next consider ar- We Wilson’s corded generally conversation is admissi guments regarding the district court’s ad- ble unless the unintelligible portions are so Thompson’s testimony mission of Officer substantial that recording as a whole is regarding phone the recorded calls. untrustworthy.” Lane, United States v. (9th Cir.1975). has Wilson A tapes shown that the were so uniform quality Because the sound of the ly unintelligible that recordings should recordings poor, tape Wilson claims not presented have been jury. to the No Thompson acting that Officer as a objection was made at trial on this basis. government-produced transcript of the re Nor was there persons evidence “that cordings, and the court did not take the the courtroom were to hear unable sub necessary steps accuracy to ensure the portions stantial of the conversations re transcript interpretation. or Because corded tapes, on the or that the words trial, neither defendant claim raised this at were unintelligible.” United States v. Ti it plain Lindsey, we review for error. See sor, Cir.1996). Fur Applying F.3d 550-51. this stan ther, Wilson waived or forfeited this argu dard, we conclude the district court did not by opposing ment to provide efforts plainly err. Thompson’s testimony Officer original recordings jury during their regarding phone the context of the calls deliberations. jury requested When the interpretation ambiguous vague (rather original telephone recordings statements was not akin to a verbatim than the courtroom recordings clips calls, transcript of the and thus the district they trial), played during were Wil court plain did not commit error in not objected son to giving jury original considering sua sponte whether sufficient clips. Although government proposed steps were taken to ensure the statements’ give jury “the possible clearest ver accuracy. Armijo, United States v. trial, sion” of the clips played at Wilson Cf. (9th Cir.1993) (considering argued against approaches sug various regarding accuracy that, various factors of a gested by government would have transcription translating recorded tele enabled the to hear originals, *16 phone Spanish English). calls from to contended that the should be limited Moreover, even under the ap recording standard to the played of what was in plied transcripts, to written Consequently, there were court.4 the district court’s ample accuracy, given indicia of failure to sponte tapes de sua exclude the was plain fense counsel had the not error. opportunity to chal lenge accuracy of Thompson’s Officer B testimony and to introduce alternative ver sions, and the Second, district court informed the Wilson asserts that the district jury on at least three occasions that the court in allowing Thompson erred Officer Accordingly, asserting jury's the dissent errs in district to court's chosen solution” response jury's request in to the for the request tapes. for the & Dissent n.3. tapes, merely defendants to the "consented] ” that “[wit- a ‘fact’ and by rule what is content concerning the testify
to difficulty expressing in find nesses often type this of claims Wilson calls. telephone not that which is language themselves because it does testimony is inadmissible conclusion”); see also or opinion of an testi- lay opinion criteria meet the 173, Pierson, 503 F.2d States United Rules the Federal 701 of under Rule mony (D.C.Cir.1974) “so- (stating that Wilson, According to Officer of Evidence. strictly fol- “not rule” was opinion called inadmissible testimony was Thompson’s difficulty large part lowed—due Thompson Officer this rule because under fact between drawing a fine distinction conver- witness to the percipient not a Indeed, Cir- as the D.C. opinion”). and on the testimony was based sations, his “[tjhere is no conceivable explained, cuit whole, interpretation investigation as detailed specific, however statement jury’s role usurped testimony vague ‘factual,’ measure some that is fact, interpretation and his trier of as well and reflection of inference product hearsay. on one call relied phone Pierson, memory.” as observation arguments of Wilson’s Our consideration on (quoting at 176 McCormick Rule scope examine us to requires (1972)). The drafters § 11 Evidence to offer laya witness 701 allows 701. Rule the concern rejected also Rule 701 (a) “rationally based opinions are ju- mislead testimony lay opinion would (b) “helpful” perception,” the witness’s that “the 701 assumes instead ries. Rule scientific, (e) “not based on jury, adversary characteristics of natural knowledge technical, specialized other accept- to an generally lead system will testimony. expert scope of’ within the lay result,” in the and weaknesses able 1975, rep- rule promulgated When testimony emphasized be can witness’s then-pre- from a departure resented argu- “cross-examination through lay governing evidentiary principles vailing advisory commit- ment.” Fed.R.Evid. re- generally testimony, which witness notes; States v. see also United tee’s “to limit their quired witnesses (9th Cir.2005) Beck, 418 F.3d avoid they perceived and just to the facts and cross-examination that “direct (noting on those based or inferences opinions to his or her lay testifying as of a witness & Wright Alan Victor facts.” 29 Charles verify the accu- upon relied opinion is Gold, Procedure Practice & Federal James testimony”). racy (1997). justified this Courts § at 105 lay opinion Rule 701 applying “lay-witness grounds that approach on the officers, we testimony of law enforcement jury, whose the role of opinion usurps interpretation of that an have held officer’s as to job conclusions it is draw Rule may meet intercepted phone calls evidence,” and because meaning of the it when “perception” requirement 701’s perceived facts “testimony limited conversa- ambiguous “of interpretation opin- than mere reliable considered more direct officer’s] upon [the tions based ion, misleading.” Id. be which could investigation.” United knowledge of the § at 109. (Kevin Freeman), 498 v. Freeman (9th Cir.2007); rejected see also Rule 701 both 904-05 *17 The drafters of F.3d Simas, 459, 464- First, F.2d the distinction States v. 937 United these distinctions. Cir.1991) (9th of dis- to no abuse proved (finding be 65 “opinion” “fact” and between testimony lay admitting in officers’ in Fed.R.Evid. cretion practice. See unworkable understanding of what “concerning their (noting advisory 701 committee’s note convey by vague his meant determining [defendant] impossibility of practical “the
1207 statements”).5 ambiguous In Kevin Lay testimony witness regarding the Freeman, instance, for we that once held meaning ambiguous conversations based foundation, government established a a on the witness’s direct perceptions and provide could police lay officer witness experience may prove also “helpful to the opinion testimony regarding the meaning jury” purposes of Rule 701. See Kevin intercept of statements the defendant’s Freeman, (agent’s 498 F.3d 904-05 “un- phone testimony ed calls because the derstanding ambiguous phrases” based based on the officer’s “direct perception of on the “direct perception of several hours intercepted several hours of conversa of intercepted along conversations” tions—in some instances coupled with di “direct observation” of defendants and rect observation of [the defendants] “other during —and facts he learned the investi- other facts he learned during the investi gation” testimony resulted in that “proved 904-05; gation.” 498 F.3d at see also helpful jury determining what the El-Mezain, 467, v. United States 664 F.3d [co-conspirators] were communicating dur- (5th Cir.2011) (allowing lay opinion 513-14 calls”); ing telephone the recorded see also testimony interpreting telephone calls Rollins, 544 F.3d at (agent’s 832-33 testi- agents’ opinions when “the were limited mony based on listening every inter- personal perceptions their in from their conversation, cepted “personal and other case”); vestigation of this United States v. observations perceptions” related to Rollins, 820, 544 F.3d 830-33 Cir. specific jury case at issue “assisted the 2008) (finding no error in the district issue”). determining several facts in agent’s court’s decision to allow the testi
mony regarding “impressions” hand, of re On the other an officer’s testimony testimony corded conversations when the interpreting recorded conversa agent’s perceptions was “based on the may de tions fall outside the scope of Rule investigation rived from the particu of this 701 if it is not based the witness’s (for lar conspiracy”). testimony Such is admis perception example, if it is based on sible even if the testifying speculation hearsay) officer was not a or not helpful participant Freeman, jury. the recorded conversation. Kevin 498 F.3d at Freeman, 904; Kevin Lay testimony 498 F.3d at see also is not helpful to the “ 1085, v. Jayyousi, merely provides United States 657 F.3d if it ‘interpretation ” (11th Cir.2011) lay 1102 that a (holding of dear statements’ that are within the witness’s was admissible even knowledge jury. (quot common of the Id. Dicker, though personally 1103, “he did not ing observe or United States v. 853 F.2d (3d Cir.1988)). Dicker, participate in the defendants’ conversa 1109 for in tions”); Garcia, stance, government agent United States v. 994 F.2d testified about (10th Cir.1993) 1499, conversations, (admitting an the meaning recorded opinion only officer’s listening explained parties based “on that the to the con conversations coconspira- discussing between versation were for ob means tors”). taining F.2d at “phony paperwork.” 853 1085, majority 5. The Jayyousi, of the circuits allow officers to States v. 657 F.3d 1102-03 provide interpretations Rollins, (11th Cir.2011); of recorded conversa- United States v. knowledge tions based on their 820, investi- (7th Cir.2008); F.3d 830-33 United gation, subject safeguards. to various See Garcia, States v. 1506-07 Albertelli, United States v. 444- F.3d Peri, (10th Cir.1993); De United States v. (1st Cir.2012); El-Mezain, United (3d Cir.1985). 977-78 (5th Cir.2011); 513-14 United *18 an personal involvement recordings and conversations recorded But the 1106. in United States investigation. Thus any discussion include not did themselves (D.C.Cir.2013),the no Hampton, there was and paperwork, phony of a be ob district determined the documents D.C. Circuit “that indication allowing an genuine.” Id. at Rule 701 had violated were not be court tained circumstances, Dicker intercepted testify regarding these agent FBI 1105. Under conversations, govern- mischaracterization though the officer’s held that even in the conversation used had plain agent words FBI that the ment established jury, and thus to the helpful was not moni- investigation, charge been 1108-10; at see 701. Id. by Rule barred physical surveil- wiretaps, performed tored (Marcus v. Freeman also United lance, agents who moni- other supervised Freeman), Cir. 730 F.3d each had reviewed wiretaps, and tored 2013) 701 barred an (holding that Rule 20,000 intercepted of the conversations essentially testimony which officer’s According to at wiretaps. Id. 981-83. phone interpretations “spoon-fed his a Circuit, testimony raised such the D.C. theory of the government’s and the calls testifying “was based agent that the risk even ordi jury, interpreting to the case jury” not before upon information Rollins, 544 language”); nary English his infer- way verifying jury “had no agent’s “impres an (admitting F.3d at 833 own reaching its independently ences or intercepted conversa an regarding sions” (internal quo- at 983 interpretations.” Id. merely not agent “was tion because omitted); see also United marks tation reach as to jury what result to telling the (2d 746, 750-51 Grinage, 390 F.3d States v. As the culpability”). defendants’ Cir.2004) (same). noted, “meaningless drafters of Rule 701 approach, which disagree We little amount more which assertions evidentiary policies harkens back up should be excluded choosing than sides” Rule rejected by the drafters of that were Fed.R.Evid. 701 helpfulness. lack of testimony lay opinion A 701. witness’s addition, advisory committee’s note. own necessarily draws on the witness’s conveys hear testimony that relies per- understanding, including wealth evidence, an officer re say as when such information, and edu- experience, sonal state party’s truth of third lies on the cation, placed that cannot be before of a interpretation basis for ment as the their cannot draw on jury. If witnesses call, intercepted phone in an statement knowledge, they are effec- experience inadmissible, it because would also both factual infor- tively presenting limited to percep own on the be based officer’s echoes approach mation. Such an tions, helpful. would not be Kevin between allow- now-abandoned distinction Freeman, Any error in at “facts” testimony regarding but ing testimony under admitting lay opinion policy the historical “opinions,” revives however, harmless if in could be Rule admitting lay opinion whole, there light of the evidence as jury, a view that was the role of the usurps was not a “fair assurance that See rejected by the Rule 701 drafters. by the error.” Id. substantially swayed 983; id. at 986 Hampton, omitted). (internal quotation marks (Brown, J., Grinage, 390 F.3d concurring); minority A circuits have construed at 749-51. narrowly and barred Rule 701 much more such a limita- impose 701 does not Rule intercepted com- interpreting officers from Rule while district tion. Under their review of the munications based on
1209
Yazzie,
wisely
court must exercise its discretion
to United
976 F.2d
(9th Cir.1992)).
may
in ad
problems
minimize
arise
1255
Because Wilson did
lay
testimony,
mitting
opinion
challenge
see Albertel
Officer Thompson’s testimo-
li,
at 447 (listing dangers
ny
trial,
under Rule 701 at
we review for
safeguards),
guiding policy
of the Rule plain
Lindsey,
error. See
opinion testimony help with the
adversary process, see 701 ad Fed.R.Evid. visory committee’s note. regularly Courts First, argues Wilson that Officer lay opinion testimony regarding admit the Thompson could not interpreta- offer his see, identity person photograph, of a in a tions of the phone recorded conversations Beck, 1014-15, e.g., 418 F.3d at and voice under Rule lay opinion because testi- see, testimony, e.g., identification United mony is only admissible when a witness Thomas, States v. 133 n. 23 was a party the conversation himself or (9th Cir.1978), though even the witness was a percipient witness. Because we re- provides past such identification based on jected precise argument this in Kevin pertinent contacts with the individual that Freeman, 904-05, 498 F.3d at the district jury’s knowledge. are outside the Similar plainly court did not in striking err ly, investigator an who has accumulated Officer Thompson’s testimony on this years months or even of experience with ground. events, places, and individuals involved in an investigation necessarily draws on indeed, that knowledge testifying; when it Next, Wilson claims that Officer experiences is those out-of-court that make Thompson’s interpretation was inadmissi testimony helpful jury. the witness’s ble it investiga because was based on the Contrary Hampton to the rationale of whole, tion as a including police report Grinage, application “the of Rule 701 and information contributed other offi should not be influenced concern that cers, merely personal rather than ob opinion testimony usurps the role of the The district servations. court did not factual is more reli plainly failing in err to strike Officer opinion testimony.”6 able than Wright, testimony on Thompson’s ground. § supra, at 112. According testimony, to his Officer argu
We now consider Wilson’s Thompson had been involved the inves light principles. tigation drug early ments of these “The conspiracy since admissibility lay opinion testimony un spanned 2010. His involvement house, multi-day der Rule is committed to the sound searches of the Fouts house, discretion of the trial judge Way and his deci surveillance of the Gillam house, sion will be if only Way overturned it consti search of the Gillam tutes a clear abuse of prison discretion.” Nation review of around 100 hours of Inc., Transp. Sys., wide Fin. v. Cass phone light calls. of our decision Info. (9th Cir.2008) Freeman, (quoting F.3d 1051 Kevin where testi- we admitted put jury. 6. We therefore decline the dissent’s invitation bul have not been before the Dis- (or adopt lay 1224-25, a rule that a witness at least sent at 1227. Such a rule would officer) provide lay opinion cannot testi- plain language not be consistent with the mony experiences based information and Rule 701 or our decision Kevin Freeman. lay knowledge, that are within the witness’s Freeman, Free- Marcus lacking in Marcus experiences, on similar mony based *20 claims. bearing to con- little on Wilson’s ample grounds man has had district court in- based his Thompson clude that Officer knowledge of personal on his
terpretations
investigation.
during the
he learned
facts
lines,
argues that
Wilson
Along the same
conclusion, Wil-
against this
arguing
sponte
erred
not sua
the district court
Freeman,
in which
on Marcus
son relies
interpretation
Thompson’s
striking Officer
testi-
agent’s
that an
held
the Sixth Circuit
to “Powell” to mean
reference
of Wilson’s
Rule 701
under
mony was not admissible
Powell,”
interpretation of Wil-
and his
“Joe
solely
agent’s
on the
it was based
because
“they
have
to “Donte”
son’s references
conversations, rath-
23,000 phone
of
review
had Donte
tape”
police
to mean the
him on
in the
agent’s involvement
than on the
er
argues that this
tape.
Wilson
Edwards
F.3d at 596-99.
investigation. 730
testimony usurps
interpretation
vague
quite
Freeman are
differ-
of Marcus
facts
disagree. Officer
jury’s function. We
the
case,
In Marcus
however.
ent from our
testimony
based on his
Thompson’s
was
Freeman,
government
the
conceded
the
investigation
the
knowledge of
“lacked the first-hand
testifying agent
involved,
that was also
evidence
persons
required
lay
a sufficient
knowledge
may
jury.
Because a
be-
before the
testimony under Rule
for his
foundation
by vague pronouns such as
come confused
701(a).”
agent
Because the
Id. at 597.
“that,”
“him,”
Thomp-
“who,”
Officer
involved in the surveillance
not been
had
helpful con-
testimony
provide
would
son’s
defendant, and had not observed
of the
Freeman, 498 F.3d at
Kevin
text. See
activity
interpreting
“any
relevant
interpre-
an officer’s
(holding
calls,”
solely
gen-
on “the
agent
relied
consisting
“ambiguous
tation of
statements
knowledge of the FBI and the investi-
eral
terms,” like “that” was admis-
ordinary
Nor did
as a whole.” Id. at 596.
gation
testimony).
lay opinion
sible as
light
meaning
on the
agent
shed
con-
highlights
particular
The dissent
personal
statements based on
ambiguous
“
versation,
‘You
where Wilson stated
regarding
investigation;
knowledge
know,
to the
referring
he’s the one’ ‘—
essentially “spoon-fed his
agent
rather the
informant
this shit.’
Pitka —’ ‘that started
calls and the
interpretations
phone
of the
Batman,
...
‘That time with
was
to the
government’s theory of the case
”
trial,
at 1231. At
Officer
him.’ Dissent
ordinary English
even
jury,
interpreting
explained that “Batman” refers
Thompson
at 597.
these cir-
language.” Id.
Under
Haynes,
state-
Brandon
and Wilson’s
cumstances,
agent’s
the No-
“that time” refers back to
ment
“rationally
per-
on his own concrete
based”
(in which Officer
vember 2010 incident
regarding
investigation and
ceptions
involved)
Pitka exe-
Thompson was
where
helpful
jury,
required
buy
Brandon
a controlled
from
cuted
Here,
contrast,
Rule 701.
Officer
Brandon’s eventual arrest.
which led to
expe-
Thompson
requisite personal
had the
id., Officer
recognizes,
dissent
As the
knowledge
investigation,
rience and
of the
testimony that “Batman” was
Thompson’s
phone
calls in the context
had reviewed
precisely
type
nickname is
Brandon’s
merely
knowledge,
of that
and did not
opinion testimony
investigation-specific
theory of the
regurgitate
government’s
But con-
Freeman authorizes.
that Kevin
government
Because the
established
case.
id.,
dissent,
Thomp-
Officer
trary to the
testi-
Thompson’s
a foundation for Officer
of “that time” is likewise
fatally
explanation
mony,
a foundation was
son’s
while such
admissible,
per-
During
Thompson’s testimony
because Kevin Freeman
Officer
ambiguous
prison
calls,
conver-
about one of the
“interpretations
phone
mits
upon
direct
[the officer’s]
sations based
noted Wilson was
investigation,”
knowledge of
reading
portion
[police]
off of a
instance,
at 904-05. For
Kevin Freeman
report
that we made after interviewing
approved
interpretation
of the officer’s
Haynes.
Brandon
You hear Brandon
statement, “Man,
already”
it’s done
...
Haynes
background
[say]
...
given
mean “he’s
the cocaine
Kevin
“Hell, no.”
thing
One
we learned
*21
money
Freeman and that he’s received his
throughout
investigation
this
is that in
According
for it.” Id. at 902.
to Kevin
phone
Haynes]
different
calls [Brandon
Freeman,
interpretations
such
“did noth-
everyone,
made numerous denials to
ing
possible
more than offer one
frame-
video-recorded,
though
even
we had a
understanding
work for
the conversation.”
audio-recorded
interview with Mr.
Thompson’s testimony regard-
Id. Officer
Haynes where he made these admissions
ing
interpretation of “that time” falls
to us.
in-
comfortably
range
within the same
objection
hearsay
Gadson’s counsel made a
least,
testimony.
very
At the
it
terpretive
purported
to “the
of Brandon
admissions
court to
plain
was not
error for the district
Haynes,” but the district court implicitly
Indeed,
testimony.
allow the
the dissent
objection.
denied
why
no
the district court’s
advances
reason
Thompson’s
cut off
testi-
failure to
Officer
Gadson,
According to
Officer
mony
sponte
sua
was “clear” or “obvious” Thompson’s
statement
that Brandon
Olano,
error,
States v.
507 U.S.
United
hearsay
“made these admissions to us” is
734,
1770,
113 S.Ct.
experience I Thompson]: agree. [Officer would through specific investi- the individuals Attorney]: Right. you [Wilson’s So single term gation) only defining when have tendency project po- would instance “nine of leaded.” This isolated lice interpretation things? officer’s onto does not raise the concerns identified I Thompson]: [Officer would—I would Further, Freeman. the district Kevin yes, I I put a—good state think a— reasonably could conclude that Offi- court together, case and I’m confident of the Thompson encountered the two terms cer people charged guilty in the case are investigation in the context his at issue the crimes. through training experi- as well as objected Gadson’s counsel to Officer Reed, at 922. “Be- ence. See Thompson’s ground answer on the that it lay cause the distinction between and ex- vouching. constituted The district court one, testimony in this context is fine pert answer, did not strike the but stated be- failing not fault district court for we do jury: fore the “[ultimately up it’s sponte.”10 to intervene sua Kevin Free- innocence, jury guilt to determine man, so the should consider all the evidence reject argument also We Wilson’s presented regard.” in that Thompson’s police reference to re- Officer appeal, On argument Gadson renews his special equipment or to his use of ports, Thompson’s that Officer statement consti- tapes, gave review the him an unwarranted impermissible tuted vouching because it *23 not special knowledge. aura of Wilson did Thompson’s personal was Officer opinion trial, argument raise this at and the dis- guilt. joins of the defendants’ Wilson this plainly did not err in not ad- trict court argument, argues and also that Officer sponte concern. dressing sua this Thompson’s opinion improper because
it went to the ultimate issue of the defen- C 704(b) guilt, in dants’ violation Rule the Federal Rules of Evidence. object spe Both defendants to a portion Thompson’s cific of Officer testi may place not Prosecutors by in mony response questioning to Wil prestige government “the of the behind a attorney. Thompson son’s After Officer through personal witness assurances regarding prison had the recorded testified veracity, suggesting that in witness’s or calls, phone attorney engaged him Wilson’s presented jury sup not to the formation in following colloquy: ports testimony.” the witness’s United [Nonetheless, Necoechea, 1273, attorney]: States v. 986 F.2d 1276 [Wilson’s (9th Cir.1993). By putting when we come into life or come into an unwarrant courtroom, credibility authority go, imprimatur wherever we we ed or Further, Thomp- drug-related investigations) quali- the admission of Officer would have 10. give expert testimony son's definition of these terms did not affect fied him to on this sub- rights, ject. Figueroa-Lopez, v. 125 the defendants’ substantial because the See United States 1241, Cir.1997) (9th (holding regarding Thompson's evidence Officer back- F.3d (he ground experience assigned lay testimony about counter- had been the admission of drug operations to the statewide enforcement unit for the surveillance was harmless because previous qualified give expert years three and a half was indeed had re- witness subject). training opinion testimony ceived several hundred hours of on witness, opinion “a direct on the defen- prosecutor may offering testifying
on the
right
defendant’s
be
Free-
“jeopardize
guilt
or innocence.” Kevin
dant’s
the evidence
704(b)
the basis of
solely
man,
tried
But Rule
jury.”
States v.
to the
United
presented
Thomp-
inapplicable by its terms. Officer
(9th
1142,
F.3d
1146-48
Weatherspoon, 410
testifying
expert
not
as an
witness
son was
omitted).
(internal
Cir.2005)
citations
The defendants have cited no cases
here.
case, however,
did not
government
704(b)
witness,
laya
applying Rule
testimony, nor
Thompson’s
elicit Officer
doing
no
for
so under the
there is
basis
credibility
“either
it
for his
did
vouch
Accordingly, the district
text of the rule.
the wit
prestige
own
behind
putting its
striking
did not err in not
the testi-
court
ness,
infor
by indicating that extrinsic
704(b)
mony
grounds.11
on Rule
presented
supports
court
mation not
testimony.” United States
witnesses]
IY
Garcia-Guizar,
Cir.
challenges
two
re
Gadson raises
omitted).
1998) (internal quotation marks
lating
government’s
reliance on
Rather,
Thompson
only
testified
Officer
States,
Pinkerton v. United
328 U.S.
about his
testi
that he was confident
own
(1946),
66 S.Ct.
court’s
to the Pinkerton
objection
particular
of
guilty
the
may find
defendant
[Y]ou
instruction,
plain
our
is for
and so
review
in further-
of a firearm
possession
...
Kessi,
See United States
error.
3, if
trafficking, Count
drug
...
ance of
(9th Cir.1989) (one
of
type
each of the
proved
has
government
the
does not neces
objection to an instruction
a reasonable
beyond
following elements
objection if there
sarily preserve another
doubt:
the district court
no reason to believe
was
First,
respective
in the
person
named
objection). We
fully aware of that
was
indictment
superseding
first
count of the
court did not
the district
conclude
in the
alleged
committed
crime
its Pinkerton
formulating
err
plainly
Second,
was a mem-
the person
count.
directly
instruction
instruction.
charged in Count
conspiracy
ber of
Pinkerton, which
language
of
tracks
Third,
indictment.
superseding
of the
liability would
coconspirator
held
in fur-
the crime
committed
person
to a case where
extend
Fourth,
conspiracy....
therance
committed
the substantive offense
a member of the
the defendant
not in fact
conspirators was
one of the
at
time the offense
conspiracy
same
conspiracy,
in furtherance of the
done
fifth,
And,
offense
committed.
un-
scope of the
not fall within the
did
the unlawful
scope
fell within
merely
part
or was
project,
lawful
reasonably have
and could
agreement
could
plan which
ramifications of the
necessary or natu-
to be
foreseen
been
as a neces-
reasonably
not be
foreseen
agree-
unlawful
consequence
ral
un-
consequence of the
natural
sary or
ment.
agreement.
lawful
mis-
instruction
claims that this
Gadson
647-48,
More-
Third,
person possessed
the firearm in
ment.
conspiracy;
furtherance of the
1217 — 2796, -, nied, 133 S.Ct. drug U.S. in furtherance of firearms sion of two (2013), are mind- although we L.Ed.2d 864 18 U.S.C. pursuant trafficking sufficiency a error review of 924(c)(1). plain ful that § “theoretically stringent more only claim is under a liability Gadson’s To establish claim,” preserved for a than the standard had to government theory, the Pinkerton 911, 917 Flyer, v. United “reasonably foreseen it could be prove that Cir.2011) (internal (9th quotation marks consequence natural necessary a or omitted). of Gad- that one agreement” unlawful a firearm” would use “coconspirators son’s review, this standard Under trafficking of- drug of the in furtherance Gad- to sustain the evidence was sufficient Carter, v. United States fenses. two possession of the for son’s conviction (internal Cir.2009) (9th quota- 1107, 1113 charged of the in furtherance firearms omitted). government tion marks trial The evidence at drug crimes. “actual that Gadson had prove need the Fouts frequented that Gadson showed used,” only be guns that would knowledge house, conspira of the core member was a and such plan in the he was involved primary supplier a cocaine cy, and was “from reasonably foreseeable use would be house. The out of the Fouts sold (internal quo- Id. plan.” of the the nature drug expert dealers heard omitted). tation marks at locations with commonly keep guns jury’s challenge Gadson does money or be quantities drugs large co-conspirators one of finding that they are concerned about raids cause traffick- drug in furtherance of gun used government and the competitors, police Rather, argues that the evidence ing. drugs, regarding the introduced evidence he could prove was insufficient cash, at the Fouts found and firearms co-con- reasonably foreseen that a have specific more was also the house. There possessed the Fouts house spirator at was present trial that Gadson testimony at of the in furtherance handgun shotgun Haynes showed Voaklander when Joshua drug conspiracy. under the couch rifle hidden an assault reviewing the constitutional to be that it explained cushions and a crimi support of evidence sufficiency through “somebody comes used case conviction, whether must nal we determine Taking this evidence the front door.” light in the evidence viewing “after prosecu favorable light most any ra prosecution, most favorable to Jackson, S.Ct. tion, 443 U.S. have found of fact could tional trier have concluded jury could a rational beyond a of the crime essential elements Gad- reasonably foreseeable to that it was Virginia, v. reasonable doubt.” Jackson would co-conspirators of his son one 307, 319, 99 S.Ct. 443 U.S. drug in furtherance a firearm use (1979). Although Gadson L.Ed.2d trafficking offenses. under acquittal judgment moved for the Federal Rules Criminal Rule 29 of V govern close of after the
Procedure sufficiency of challenges the case, motion Wilson not renew his ment’s he did is that His claim at trial as well. Accord evidence the evidence. after the of all close insuf- trial introduced at plain for the evidence challenge ingly, we review that he finding assault- support 704 ficient error, Phillips, United States see infor- providing in retaliation Cir.2012), ed Pitka cert. de- *27 mation to a federal official in violation of son intended to retaliate because Pitka 1513(b)(2).14 § 18 U.S.C. Wilson did provided government. information to the trial, move for at the close of acquittal and Accordingly, there was sufficient evidence plain so error. we review support conviction Wilson’s under 18 1513(b)(2). § U.S.C. prove To a violation Because the 1513(b)(2), establishing evidence § government must show: “(1) (2) specific Wilson had the intent to retaliate knowing engagement in conduct against Pitka causing, cause, primarily either or was derived from threatening to (3) bodily injury calls, his recorded person telephone to another also Wilson for, alia,” argues the intent to retaliate inter pro jury rely could not on this viding relating information to a federal evidence because the calls constituted con offense to a law enforcement officer. fessions that had not adequately been cor Henderson, United States v. roborated. Lopez- See United States v. (6th Cir.2010) (internal quotation Alvarez, 589-90 Cir. omitted). marks argues Wilson that no 1992). disagree. Lopez-Alvarez We stat rational trier of fact could conclude that he ed the longstanding rule that under most requisite acted with the intent to retaliate circumstances, a confession made to the against Pitka. police “requires independent some corrob orating evidence in order to serve as the argument Wilson’s Taking fails. basis for a conviction.” Id. 589. We in the light evidence most favorable to explained purpose that the of this rule is to prosecution, the evidence showed “high address the incidence of false confes Wilson knew that Pitka was a confidential sions resulting and the prevent need to implicated informant who had Wilson and errors upon convictions based untrue other coconspirators police. Fur (internal confessions alone.” Id. quotation ther, a could have concluded that omitted). marks A secondary rationale is Wilson harm intended to Pitka because he preserve a justice robust criminal sys was a “snitch.” The evidence shows that premised tem on “extrinsic evidence inde Wilson assaulted Pitka in hallway pendently secured through skillful investi days few after telling Haynes Gabriella gation,” rather than heavily one that relies go “[s]nitches can’t into hallways,” on confessions. Id. at and later 589 n. 5. reported to Gabriella Wilson’s that he had hit statements “Donny,” to his cousin are and made other not confes statements suggesting police, sions to the thought private it but was Pitka’s in statements volvement in buy the controlled that were intercepted by that led to police. the unraveling Therefore, of the drug conspiracy. requirement corroboration Wilson offered no explanation Lopez-Alvarez alternative applicable. More evidence, for the assault. over, Based on this the policy rationales underlying Lo juror reasonable could pez-Alvarez conclude that Wil- are not present police when provides: 14. The statute pro- offense or a violation of conditions of (b) bation, release, knowingly engages supervised parole, Whoever any con- or re- thereby duct and bodily injury pending judicial causes proceedings given lease person damages another tangible or officer; person ato law enforcement property person, of another or threatens to so, attempts to do shall be fined under so, against do with intent any to retaliate imprisoned this title or not more than 20 person for— years, or both. (2) any relating information to the commis- 1513(b)(2). § 18 U.S.C. possible sion or commission of a Federal
1219 involved, “all rea- directly and or admis- dant obtains statements investigation of acts and omissions sonably foreseeable to a third by the defendant made sions jointly under- in furtherance here. others the circumstances under person activity.” U.S.S.G. criminal taken lB1.3(a)(l)(B). calculating the § After VI level, must the district court offense base and Wil address Gadson nowWe the offense characteris- specific determine court commit the district son’s claims 2Dl.l(b), any ad- tics, § determine id. In sentencing. errors procedural ted victim, role, and ob- to related justments court the district determining whether lBl.l(a)(3), § and justice, id. of struction defendant’s of a in its calculation erred history criminal the defendant’s determine court’s sentence, the district we review lBl.l(a)(6). § category, id. novo, de of the Guidelines interpretation of making required the calculation In the Guidelines of application its adopted the district court discretion, drug quantities, its factual and of facts for abuse Investigation Report’s Presentenee roles quantity and including drug findings, (PSR) responsi- findings Gadson was offense, error. United for clear in an marijuana (9th 10,521,103 of 708, grams Staten, ble for 713 v. States in a base offense resulting equivalency, v. Gon Cir.2006); States also United see 2Dl.l(c)(2). Cir.2008) § (9th of 36. See U.S.S.G. level zalez, 1214 F.3d Rivera, adopted also two-level court a The district v. United States (drug quantity); (roles). “maintaining] premises Cir.2008) (9th adjustment for 891, 908 manufacturing or dis- of purpose
for the
substance,” id.
tributing
A
a controlled
2Dl.l(b)(12),
adjustment
a three-level
§
set
Sentencing Guidelines
(but
manager
supervisor
or
being “a
for
determining
ap
for
procedure
forth
leader)
the crimi-
or
organizer
The district
range.
sentencing
plicable
partici-
five or more
activity
nal
involved
correct of
must first determine
court
extensive,” id.
otherwise
or was
pants
applicable
guideline section
fense
for
3Bl.l(b),
adjustment
a two-level
§
conviction,
then determine
of
offense
§
Ac-
id.
3C1.1.
justice,
of
obstruction
United
offense level.
correct base
assigned Gad-
court
the district
cordingly,
Rivera-Gomez,
resulting
level of
a total offense
son
Cir.2011).
guideline
Here
510-11
of life.
sentencing range
a Guideline
21 U.S.C.
convictions under
for Gadson’s
court
A. The district
pt.
U.S.S.G. Ch.
841(a)(1)
(conspiracy
1 and
§
for Counts
to 300
Gadson
ultimately
sentenced
of a controlled
possession
distribute and
eight years
imprisonment
months
distribute)
is
intent
substance with
release.
supervised
Guidelines.
Sentencing
§ 2D1.1 of the
district court
argues
2Dl.l(a)(5)
Gadson
the district
directs
Section
calculation
ways
its
in two
clearly erred
drugs
for which
up
add
court to
First,
argues
he
range.
the Guidelines
then use
responsible and
defendant was
calculating
court erred
that the district
Quantity Table to
Drug
the Guidelines’
him.
drugs attributable
quantity
offense
base
the defendant’s
determine
insuffi-
there
Second,
argues that
quantity
determining
level.
three-level
support
evidence to
cient
responsible,
a defendant
drugs for which
having managerial
enhancement
quanti
all
is to consider
the district court
supervisory role.
the defen-
with which
ties of contraband
Guidelines,
tencing
the PSR converted the
quantity of each drug
equivalent
into an
start with
claim
We
Gadson’s
quantity marijuana,
10,521,103
totalling
that the district court’s calculation of-the
*29
grams marijuana.
of
The
con-
PSR also
drug quantity attributable to Gadson was
verted the cash
money
orders seized
clearly
involving
erroneous.
cases
($51,455)
at the Fouts
Way
and Gillam
“jointly
activity,”
undertaken criminal
($43,020)
equivalent
houses into an
amount
base offense level is determined on the
cocaine,
powder
$40,000
of
using a ratio of
reasonably
basis of “all
foreseeable acts
per kilogram. The total
powder
amount of
in
omissions of others
furtherance” of
cocaine
calculated
this manner
2.27
lB1.3(a)(l)(B).
activity.
§
U.S.S.G.
kilograms. The district court expressly
government
prov
bears the burden of
adopted the PSR’s factual findings.
ing
drugs
the amount of
attributable to a
by
preponderance
defendant
of the evi
argues
Gadson
the district court
dence. United States v. Culps, 300 F.3d made three errors in calculating
drug
(9th
1069,
Cir.2002).
1076
A district court
First,
quantity.
he contends that the dis-
may approximate the
drugs
amount of
at
trict court
in failing
erred
to make an
tributable
defendant where the
express
finding
factual
that Gadson could
drugs
amount of
by
seized
the officers
reasonably foresee that all
drugs
at-
“does not reflect the scale of the offense.”
(aside
him
tributed to
drugs
from the
§ 2D1.1
U.S.S.G.
cmt. 5. In making an
house)
Way
seized from his Gillam
were in
estimate,
may consider,
the court
among
jointly
furtherance of the
undertaken crim-
factors,
price
other
“the
generally obtained
activity.
inal
disagree.
We
While the
substance,
for the controlled
financial or
“district court must make an express fac-
records,
other
similar
[and]
transactions in tual finding regarding the amount
drugs
controlled substances
the defendant.”
that the defendant reasonably foresaw as
Thus,
may
Id.
a court
convert cash into being part of the conspiracy,” the district
drug quantities, provided there is some
court “may satisfy the requirement
that it
evidence supporting a connection between make factual findings by specifically adopt-
the money seized
drug
and the
transac
ing
findings
presentence
re-
Otis,
tions. See United
127 F.3d
port,”
Whitecotton,
United States v.
142
(9th
Cir.1997)
836
(citing United
(9th
Cir.1998),
1198
so long Gonzalez-Sanchez,
States v.
under (converted kilograms powder of cy to 2.27 counsel, the dis- by Gadson’s examination cocaine) would be to Gadson harmless. testi- could credit Voaklander’s trict court First, kilograms that the 2.27 it is not clear uncorroborated it though was mony even in included cocaine were powder of from his would benefit and Voaklander offense of base level. Gadson’s calculation See government. cooperation with marijuana equivalency of calculating the In Alvarez, United Gadson, to the PSR drugs attributable Cir.2004). Moreover, other evi- 6,601.5 powder of cocaine grams converted at trial established introduced dence marijuana. 1,320,300 of grams transactions in the was involved Gadson 6,601.5 to the amount grams equivalent present regularly house: he was the Fouts from the Fouts drugs of actual seized found house, were fingerprints his at the (.4 grams) (1,977.4 Way grams) and Gillam nearly a containing in the house on a box houses, at trial drugs described of cocaine, large sums he received kilo of explain not (4,623.7 does grams). Gadson from Joshua two cash on occasions kilograms powder of cocaine house and the 2.27 at the Fouts how Haynes, who lived Voaklander, of his base he com- in calculation included drugs to sold the were Transport- of But if we assume that how the level. even plained about arrest offense Anchorage to kilograms 2.27 er, drugs from who ferried had converted the PSR Fairbanks, everything 472,380 of grams could have “messed cocaine into powder of testimony, the district light (2,361.9 of this up.” grams marijuana equivalence finding in clearly not err court did 1: at a ratio of power cocaine converted crack from purchases Voaklander’s in the 200), included that amount total scope were within Haynes Gadson, Joshua drugs amount of attributable reasonably fore- joint undertaking affect his sen- such inclusion would to Gadson. seeable 472,380 grams would Removing the tence. drugs attribut- quantity total reduce it was im- Third, Gadson asserts 10,521,103 grams to Gadson from able to convert the the district court proper marijuana equivalence. 10,048,723grams of Way Fouts and Gillam found cash 48,723 than the greater grams This is still the mari- marijuana and include houses required drugs quantity minimum calculating amount juana equivalency level of 36 found offense the base support According level. offense base court. U.S.S.G. district Fouts house PSR, seized from the cash 2D1.1(c)(2). § nal, omitted). Because the base quotation offense internal marks level would be the same with or without The district court need not any spe- make the amounts attributable to the seized cur findings cific as to this long issue so rency, error was any harmless. United evidence in supports the record an infer- Garcia-Guizar, States v. 491 ence that the defendant req- exercised the (9th Cir.2000). degree uisite of control. United States v. (9th Cir.2012). Whitney, The district court clearly did not turn We now to Gadson’s claim that the err finding played that Gadson a mana district court in imposing erred a three- gerial role in the drug conspiracy. The sentencing level playing enhancement for record supports an that Gadson inference 3Bl.l(b). managerial § role. See U.S.S.G. “oversaw” a participant in the offense 3Bl.l(b), § Under an enhancement is re- the name “Transporter.” Transporter quired where a “manager defendant was a indictment, was not named but testi (but supervisor organizer or mony at trial established that he trans leader) and activity the criminal involved ported drugs on several occasions from five or participants.” more prove To that Anchorage, where Gadson maintained *31 played role, defendant such a the govern- residence, house, to the Fouts that his ment must demonstrate that the defendant visits to Fairbanks were coordinated with oversaw or more participants,” “one other Gadson’s, that complained and Gadson “ meaning persons who are ‘criminally re- Transporter could every have “messed sponsible the for of commission the of- thing up” if he were arrested. The district fense, but [who] need not have been con- conclude, court could based on this testi ” Smith, victed.’ United States v. 719 F.3d mony, that Transporter was a “partici (9th 1120, Cir.2013) 1125 (quoting U.S.S.G. pant” in offense, the criminal and that § 2); 3B1.1 cmt. see also United States v. Gadson directed him to drugs deliver Woods, (9th Cir.2003). F.3d 335 1001 Fairbanks from Anchorage. United Cf. (9th States v. Egge, 223 F.3d In 1132 determination, making this Cir.2000) 3Bl.l(b) § (finding district enhancement court should “the consider exercise warranted where participant, among of decision other making authority, the nature of things, accompanied defendant on participation trips in the commission of the of pick drugs); fense, up Franco, United v. the States recruitment of accomplices, the (9th Cir.1998) 136 F.3d (finding claimed to a right larger of share the fruits 3Bl.l(b) § crime, of enhancement warranted where degree participation in defendant participant asked run planning an er organizing offense, the na rand for him and to up set a drug ture and transac scope of the activity, illegal tion). facts, On imposition those degree of the of control authority exer managerial role was Rivera, cised over enhancement not an others.” 527 F.3d at abuse of discretion. 4). 908 (quoting § U.S.S.G. 3B1.1 cmt.
particular, “there must be evidence that B
the defendant exercised some control over
others
in
involved
commission
the of We next address
sentencing
Wilson’s
fense [or
responsible
was]
organizing
for
claim. The district
adopted
court
others for the purpose of carrying out the PSR’s
assigned
findings
aWilson base
crime.”
Riley,
United States v.
offense level of 28 based on
quantity
(9th
Cir.2003) (alteration
in origi- drugs attributable to him.
claims
Wilson
explaining
any evidence
provide
failed
denying
erred
court
the district
conspiracy).
role
his lesser
under
adjustment
a downward
him
“substan-
was
he
§ 3B1.2 because
U.S.S.G.
n
VII
partici-
other
than the
culpable”
tially less
cmt.
id.
See
cumu-
pants.
that the
claim
Finally, defendants
trial errors warrant
of the
impact
lative
adjustment
downward
A two-level
error—and
find no
Because we
reversal.
the de
when
is
role warranted
minor
for
error—reversal
prejudicial
certainly not
in any
participant
“minor
was
fendant
unwarranted.'
3B1.2(b).15 The
§
activity.” Id.
criminal
AFFIRMED.
partici
a “minor
commentary explains
“sub
who was
abe
defendant
must
pant”
concurring
BERZON,
Judge,
Circuit
average
culpable than
stantially less
dissenting:
3(A), but
cmt.
§ 3B1.2
id.
participant,”
except
majority opinion
as min
in the
I concur
not be described
could
role
“whose
Avery
III(B), concerning Officer
The defendant
Part
cmt. 5.
§
imal,”
3B1.2
id.
content
testimony
was
as to
that he
Thompson’s
proving
burden
bears
calls.
telephone
recorded
preponderance
by a
the defendants’
participant
minor
holdings
Rosas,
111(B), majority’s
Part
States
As to
United
evidence.
(Kevin
Cir.2010).
v. Freeman
(9th
on United
1058, 1067
rest
Cir.2007).
Freeman),
concluded
Here,
court
district
view,
much
Freeman,
goes
my
Kevin
clearly
although Wilson
lay
allowing
officer
far
too
operation,
or leader
organizer
Other
conversations.
concerning recorded
either, citing
participant
minor
not a
Kev-
than
considerably stricter
are
circuits
*32
group,
of the
was one
Wilson
fact that
view,
my
In
regard.
in this
in Freeman
and
by Gadson
enough
trusted
was
correct,
Kevin
and
circuits are
other
with
the house
alone at
be left
Haynes to
Freeman
wrong. Kevin
is
Freeman
“aligned”
was
guns, and
and the
drugs
court,
by an en banc
be revisited
should
demonstrated
as
co-conspirators
case.
in this
perhaps
testimony
Pitka.
on
his assault
by
bind-
Freeman as
accepting Kevin
Even
extensively
discussed
evidence
I
I dissent.
present,
for
ing precedent
the dis
support
opinion
throughout
erred
plainly
court
trial'
hold
would
conclusion,
means
which
court’s
trict
admitting some
Freeman
Kevin
under
Wilson’s
that
determination
court’s
district
that
testimony, and
Thompson’s
of Officer
minor was not
was not
of involvement
level
prejudicial.
was
the error
v. Day
States
United
See
error.
clear
(9th Cir.
1082, 1102-03
child,
F.3d
357
I.
defendant
2004) (no
where
error
clear
Thomp-
challenge Officer
Defendants
act
ain
central
directly involved
Evi-
Rule
Federal
testimony under
son’s
drugs for
exchange of
i.e., the
conspiracy,
lay witness
701, which allows
dence
Del
v.
United
money); see also
(a) “rationally
only if it is
(9th
opinion
offer
Toro-Barboza,
F.3d
(b)
perception,”
witness’s
based
Cir.2012) (no
where defendant
error
clear
participant
although a minimal
categories,
could
be
also maintains
15. Wilson
lesser
showing of his
greater
make
múst
participant
“minimal”
eligible
a 4-level
for
§ 3B1.2.
U.S.S.G.
complicity.
for both
analysis
similar
adjustment. The
“helpful
clearly
understanding the wit-
In
Freeman,
Kevin
the officer “offered
ness’s
or to determining a fact
interpretations of ambiguous conversations
(c)
issue,”
“not
scientific,
based on
that did not consist of coded
terms
all.”
technical,
specialized
or other
knowledge
A.
get off of the telephone was
motivated
fear of
pulled
being
over and arrested for
Kevin Freeman addressed whether a
possession
of cocaine.” Id.
police
testify
officer may
both
an expert
concerning
witness
coded drug terms and
The Court noted
“in
these instances
as a lay witness concerning
general
[the officer] ceased to apply his specialized
knowledge about the case. The Court ex- knowledge
drug
jargon and the drug
pressed concern “that a ease agent who trade
began
to interpret ambiguous
*33
testifies as an expert receives ‘unmerited
statements based on
general
his
knowl-
credibility’ for lay testimony,” Kevin Free-
of
edge
the investigation.”
Id. at 902.
man,
(citation
These
conveying]
eases well identify
inadmissi-
the dangers of
ble hearsay
allowing
police
evidence” or other improper
officer—who is not an
bases
lay
ordinary lay
opinion
person
testimony.
testify
Kevin
based on
—to
Freeman, 498
masses
904.
The majority’s
information not described in any
holding thus
detail to the
undermines both
jury.
When our
founda-
circuit held
tional gatekeeping
played
Kevin
role
Freeman
judge
an agent’s
“inter-
and the
pret[ation
factfinding role of
ambiguous
jury.
of]
Rule 701
statements based
does not
such
general
contemplate
abdication.
knowledge of the investiga-
tion”
permissible
lay opinion testimo-
Nor, contrary to the majority’s supposi-
ny, it did not address these risks at all.
tion, is what
majority
permits here,
The majority now reads Kevin Freeman graph based on past contacts with providing blanket approval for Officer individual, contacts outside the jury’s Thompson’s lay opinion testimony, even knowledge. Maj. Op. See at 1208-09. though he failed to explain the basis for his There are four reasons at why least opinions invoked, and often any without analogy work, does not and why the detail testi- source, as to the his knowledge of mony in this case went beyond far presented evidence not at trial. That un- intended lay confines opinion rule, derstanding may well be an accu- —which Rule rate reading of Kevin Freeman —confirms that our case law has sanctioned a major First, we actually idea, have no nor did breakdown properly placed limits on the jury judge, whether Thomp- Officer lay opinion testimony. The main- majority son’s testimony was “rationally based on *35 otherwise, tains rejecting the holdings in perception^,]” [his] 701(a), Fed.R.Evid. cases such as Hampton, Grinage, and instead on what he heard from others' —via able to who was photographer during professional conversations, so reports, on— only photograph in a identify individual an investigation. the of the course through the the details amplifying after testi- not Thompson was Second, Officer not would be equipment specialized of use had knowl- he which something of to fying though testimony, even lay opinion giving itself jury The not. jury did edge that the (am- his own reporting the end was in he information as well as tapes, the heard perceptions. plified) the crimes. constituting the events about the telling instead Thompson Officer C. particular to meaning he ascribed the jury leav- conversations, than rather of pitfalls the illustrates This facts case jury. the to to permitted are determination officers ing which regime of on the basis lay witnesses testify as ordinary an is not Third, officer police investigation from the derived information directly with He is associated lay witness. the whole, is before of which not all aas regard- be likely to is the prosecution, equipment using specialized jury, exper- authority or special enjoying ed as jury.2 available methodologies not expert testifying as not tise, if even recordings the acknowledge when prem- parties All interpretation, His witness. Thompson knowledge quality. Officer vast here, poor on asserted were ised, as the “let[ting] ac- ken, likely testimony to be began is his jury’s the beyond calls jail phone usual the the “sometimes than that weight know” more corded “some- ... hear” and provide to ability of hard kind whose are witness percipient to under- hard a little was meant be bit might it testimony Rule times coherent fuzzy,” “[Sjometimes they’re just stand.” preserve. them.” good on so volume’s and “the statements Thompson’s Finally, Officer Officer whether asked prosecution The improved technologically regarding [he] us to what “direct could Thompson tapes, listened by which means clear— a real it’s not hearing” “[i]f w[as] his testi 70-73, indicates pp. see infra system.” it try play over we when requirement meet the third mony does not trial, because throughout And on based “not [be] it 701—that of Rule on the “clear always were statements technical, specialized scientific, or other Of- asked often prosecution recording” Rule 702.” scope knowledge within partici- particular what Thompson ficer 701(c); United States also see Fed.R.Evid. “saying here?” pants were Cir. Finley, 301 repeatedly also Thompson Officer 2002) requirement (identifying, the re- understanding of for vouched issue subject matter 702, that “the Rule way of “a better he had cordings because knowledge of common beyond must be Specifi- jury. than the to” them listening using Perception layman”). average jury that told Thompson cally, Officer lay the sort is not equipment specialized the record- he listened to the trial A prior directed. Rule is at which opinion audio. The interpreting testimony son's prior that unlike in to note important It entirely Officer interpretation of relies majority thus challenging an officer’s cases conversations, holding that the parties here have Thompson’s own recorded recording or any "vague” and that this Court provided were not transcript statements recorded at issue. calls telephone provide opinions "would Thompson's Officer transcript with notation only a has Court Maj. Op. at 1210. jury. helpful context” Thomp- "(Audio Officer played)” followed *36 ings times, “a lot of the ... pushing the listened to a total of 120 of ... these ears, headphones my into and slowing tapes” and “tr[ied] to maintain notes of a some of phone the calls down.” In addi- lot of them.” jury The was then told that tion having to able to been “control ... it would “[e]ertainly not” have to “listen to phone calls” “play[ing] it back all ... three 150 hours.” It only would be hear- listen[ing] seconds and to it again,” ing Officer “[l]imited number calls.” Thompson was also able to “sit down Throughout trial, [in] a Officer Thompson super super-quiet room” when listening was provide asked to interpretation his — recordings. result, As a Officer the calls on the basis of the “investigation” Thompson “was confident [he] was whole, as a hearing and he frequently invoked his it correctly” notes,” and “in [his] which knowledge he of “all of the conversations!.]” repeatedly referenced trial, during Thus, when the quality of a recording possible “tried as best as to write down poor, was Officer Thompson jury told the accurate statements.” Officer Thompson that rely he could on his extensive knowl- thus affirmed ability his to “translate” the edge of other recordings to ensure that he calls if jury was unable to hear them was translating the call properly. For ex- clearly. ample, prosecution when the noted that it
In light of
poor
quality of the re-
“was having trouble hearing” a particular
cordings, Officer Thompson’s expressed
recording, and asked Officer Thompson to
confidence
his own
im-
“translation]”
“clarify
there[,]”
what we were hearing
bued him “with an aura
expertise
and Officer Thompson stated “I’ve listened to
authority which increased the risk that the
literally probably in excess of 100 hours of
jury
swayed
would be
by his testimony.”
conversation, so
got
I’ve
a pretty good
Grinage,
was an ineffective cure when jury not, fact, played for jury. For repeatedly reminded that it had a more example, he testified that there is “a very ability limited to hear and understand the short clip out of the phone call,” same phone calls than did the witness. Unit- Cf. which Defendant Willie L. “says, Wilson Robinson, ed States v. ” ‘Yeah, they got my ring from the house.’ (6th Cir.1983) (holding that it was error to When prosecutor attempted correct tapes portions admit of which were entire- Officer Thompson, suggesting that the clip ly inaudible because it the jury caused “ may have said only ‘They my got rely too heavily on transcrip- unreliable ring[,]’” Officer Thompson responded “I tions of the conversations). recorded think clip actually was cut a little risk jury improperly would short.” He also testified regarding por- defer to Officer Thompson’s judgment was tion of a conversation which Wilson compounded by repeated his states that he is going “exit[ ] line that he listened to hundreds of hours of just a moment” go get recordings to which the not privy. “paperwork,” including police report. He jury “just told the knows, so everyone But the prosecutor decided “to move ahead there’s about 150 hours or jail so phone to where Mr. Wilson is returning with the call recordings.” those, Of he “probably paperwork, rather than necessarily listen- *37 “ portion had this they just ‘[i]f responded paper- the getting and him going ing to other know and didn’t the conversation decision of prosecutor’s Although the work.” other investigation and to avoid things about the is understandable skip ahead to silence, any- the I conversations, maybe. But of to minutes having to listen think — Thompson of the calls Officer all to trust to asked has listened body who jury hold, Wil- on the call placing to of conversations prior all the that of aware and ” his get go to going he was at 982. that F.3d son stated me.’ 718 with agree would paperwork. legal Thompson’s sug- Officer Hampton, inAs interpretation no other Freeman, Thomp- that gestion Officer in Marcus As when correct would be calls calls phone telephone from the conclusions “drew son to unavailable ... other context —context as from placed as well heard jury the had that the “risk jury the a serious jury ... evidence calls and the phone —created so, infringed superior he doing the officer’s In to defer 'w[ould] to. jury no access to what recordings to decide jury the the of case” and the role upon the knowledge told evidence, instead from the at 981. infer Id themselves. to inferences what conclusions
them
well as
recordings’ poor quality,
of Offi-
light
In
at 598.
draw.”
jury
the
left
played,
selection
limited
the
re-
invocation of
repeated
Thompson’s
cer
it
to
need[ed]
“the information
without
left
jury was
“the
evidence
cordings
lay
assessment
independent
an
conduct
information—
some
he had
to trust
vague
from
Aside
testimony.” Id
opinion
made
to them —that
unknown
information
as a
investigation”
“the
to
references
the words
interpret
situated to
him better
explain
to
“failed
whole,
Thompson
Officer
at
Id
they were.”
calls than
in the
used
ex-
interpretations
his
the basis
—what
597.
jurors
the
themselves
had that
he
perience
on cross-ex-
questioned
Notably, when
lay a
failed to
therefore
did not have—and
fre-
phrase
particular
whether
amination
Marcus
701.”
Rule
under
foundation
inter-
be
“could
by Wilson
quently used
Grinage, all
Freeman,
597.
at
ways,”
of different
any number
preted [in]
into
admitted
calls were
2,000 recorded
think
“I
out
Thompson stated
Officer
were
only
evidence,
though
thirteen
even
if
I think
be.
context,
certainly could
it
747-48.
F.3d at
at
trial.
played
prior
the
in context
it
you placed
opin-
gave
Grinage
officer
the
When
after
made
the statements
statements
the
all of’
having “listened
ion based
jury had access
the
that,”
of which
not all
least able
jury was
calls,
the
id at
it into a
certainly puts
better
to,
it
“I think
informed
recordings
the
to listen
similar
testimony was
This
perspective.”
desired.
testimony,
if it so
officer’s
the
Hampton,
where
troubling
found
to that
calls—not
contrast, none of
Here, by
possible
if it was
asked
agent
during trial —were
played
the ones
even
un-
perhaps
jury,
else—the
someone
—to
Thus
evidence.3
into
directly admitted
differently, and
a statement
derstand
recording of
played essentially,
were
calls
government failed
appears
—
It
jury
morning,
next
recording. The
recordings contain-
excerpts of the
preserve
telephone
original
hear "the
calls,
it could
asked if
portions
telephone
only those
ing
play-
recordings of the
recordings, not
thereof,
at trial.
actually played
were
record-
the trial
presumably because
during deliberations
asked
back?” —
When
origi-
than
to hear
calls,"
ings were even harder
jail phone
all
recordings of
"review
had
government
tapes. But because
recording
nal
only the audio
played
court
excerpts,
defense
preserve
failed
telephone
in which
proceedings
trial
when
Thompson “interpreted
Officer
those mare held that an officer’s interpretation of
conversations on the basis of his listening
statements “that were not
drug
encoded
calls,’
to ‘all of the
the jury had no way of
jargon, but instead were phrases that were
verifying his inferences or
independent-
more likely to be
jurors
understood
*38
ly assessing
logical steps
the
he had tak- without assistance” violates Rule 701. 498
Freeman,
en.” Marcus
(quoting Hampton, 718 at F.3d It is For example, Kevin Freeman held “not understandable that “the jury, left in the helpful to the jury,” regarding dark id. at the source of officer’s [Officer information, interpretation Thompsonj’s of one likely [would] defendant’s “in- g[i]ve him the benefit of the doubt in struction] [to to speak another] with him situation.” Id. at 596. But to allow the later they so that get ‘can the particu- all jury to so do is to sanction an abdication of lars,’” as being “a reference to the ‘de- ” jury’s duty. tails,’ id. at 900. Similarly, when one defendant asked another
Kevin “how everything Freeman allows jury’s critical out,” had turned factfinding role to be we held usurped by unhelpful law en- forcement testimony testimony based on officer’s evidence not that the defendant “was presented at trial. As other asking circuits have ... how did the out, deal turn ‘drug ” held, this procedure has no basis in the how did everything go?’ Id. This testimo- Federal Evidence, Rules of undermines ny was particularly troubling because it trial jury, and cannot be allowed.4 involved the agent’s case speculation as to whether the defendant was involved in a
II. drug conspiracy, the precise issue jury Freeman, Even under Kevin the admis- required to decide. noted in We Kev- sion of some of Officer Thompson’s testi- in Freeman that the case agent’s “special- mony was in error. ized knowledge particular of the language of drug
The bulk
traffickers
of Officer
did not
Thompson’s
give him carte
testimo-
ny appears to
blanche to testify
have
interpretation
involved
as to
meaning
of “not only code
other
words
words in
but also common
telephone
recorded
calls
words used in common ways.”
without regard
Marcus
to reliability or relevance.”
Freeman,
4. majority opinion Rollins, references six other Cir.2008) 830-33 circuits, says which it (same). pro- "allow officers to Bat- informed that Once that function. translat- case, Thompson Officer In this fact, Haynes, was, Brandon be man “likely similarly were phrases ed interpreting capable than was more jury assis- jurors without understood without -the assistance much statement example, Wilson’s For at 900. Id. tance.” Thompson. testimony appears of Officer Thompson’s Officer the words simply repeating have involved testimony con- Thompson’s As Officer calls, in telephone the recorded said rep- speculation “either largely of sisted it.” Other hear “couldn’t - case statements,” its already clear etition of Thompson’s of Officer testimony consisted interpreted 701 as violated Rule admission meaning of state- speculation Freeman, Kevin by this court. For exam- terms. of clear up made ments calls, said Wilson during one ple, *39 “whoever, the effect of to the something HI. informant) is, it’s close.” (confidential ] [Cl court’s error was district Although the that, meant what Wilson asked When the unless is not warranted plain, relief “close he meant Thompson stated Officer rights” and “affected substantial error to to “close opposed as physically, to them” fairness, integrity, the “seriously affected This testimo- actuality.” to or close reality judicial pro- of reputation public or the part pure speculation to ny amounts Vences, 169 v. United States ceedings.” Wilson to what Thompson as of Officer Cir.1999) (internal (9th quo- 611, 613 F.3d was “close.” Cl he said the when meant omitted). The and citation tation marks interpreta- Thompson’s Although Officer “ sub- ‘affect[ ] that an error requirement one, unhelpful it was a reasonable tion was ... in most ... cases rights’ stantial ability— same had the jury, which to the prej- have error must been that the means interpret such responsibility —to affected the have outcome It must udicial: language. ordinary United court proceedings.” district day call in a Similarly, recorded 734, 725, 113 Olano, U.S. v. Pitka, Donny with altercation after the (1993). On L.Ed.2d 508 S.Ct. “ said, Wou having Wilson is described review, “bears defendant plain error that started shit.’ know, the one he’s respect with persuasion the burden Batman, that was time with ... ‘That Id. prejudice.” ” explained Thompson then him.’ Officer only with that burden has met Wilson for a nickname “Batman” is jury 7 for on Count to his conviction respect Haynes. co-conspirator, Brandon alleged in violation against witness retaliation directly derived testimony, was which This 1513(b)(2). dis- I § therefore 18 U.S.C. investigation knowledge of his from respect Count only with sent powers jury’s own within the was “[wjhoever 1513(b)(2) punishes Section under reason, permissible would be any in' conduct engages knowingly (ap- at 901-02 498 F.3d Kevin Freeman. injury to another bodily causes thereby drug coded regarding testimony proving to retaliate intent ... with person on, went how- Thompson jargon). Officer ... information any person against ever, explain, appears [Wil- “[i]t a Fed- ... of the commission relating in- sonj’s November referring back ato person given ... eral offense in fact ... cident, Pitka Mr. where ” To convert officer.... law enforcement purchase from setting up the one who 1513(b)(2) viola- §a assault into simple Haynes.” This statement Mr. Brandon have therefore, offense must tion, function, even under jury’s usurped the intent specific been committed acknowledgment limited Kevin Freeman’s against provid- me,” to retaliate a witness for paperwork in on provided “sen[t] to law no ing speculative information enforcement. See basis for his conclusion. Maggitt, Thompson’s Without Officer prejudicial United States (5th Cir.1986). testimony, there is a probabili “reasonable 593-94 ty jury that the would not have convicted” Thompson’s Officer “translation]” Wilson on Count 7. Teag United States v. testimony regarding the recorded ue, Cir.2013). 1192-93 phone only calls contained direct evi- Finally, question there is no that Officer intent dence Wilson’s to retaliate Thompson’s testimony “seriously affected against providing Pitka for information to fairness, integrity, public reputation law Thompson enforcement. Officer testi- judicial Vences, proceedings.” a call regarding fied between Wilson and (internal quotation marks cousin, Haynes, day Gabriella after omitted). In “offer[ing] a gloss narrative the incident with Pitka. Thompson Officer ... consisting] entirely almost of [his] testified that Wilson admitted to having hit “ ” “ personal opinions of what the conversa- ‘Donny’ ‘he’s because the one that ” meant[,]” Peoples, tions 250 F.3d at started this shit.’ Officer Thompson testi- Officer Thompson’s unhelpful fied about another call in which “Wilson “usurped the function of the to decide talking they put about how [is] Mr. Pitka’s *40 what to infer from the content of the paper[,]” name ... in the meaning “the calls,” Grinage, 390 F.3d at Nothing 750. jail.” documents went to the Officer could be more central to the integrity of Thompson also told the jury that Wilson judicial proceedings than right to have stated in a call morning of the assault police prosecu- or the —not go can’t into hallways.” “[s]nitches tion—decide a guilt defendant’s or inno- Thompson’s Added to Officer’s reasons, cence. For these I dissent from about the informant being “close” and the III(B) Part majority opinion. incident,” reference to the “November speculation professed “translation]” “already statementsf,]”
these clear Kevin
Freeman, provided F.3d at a di-
rect link between the assault and Wilson’s
intent against to retaliate being Pitka for QUEEN ANNE PARK HOMEOWNERS “[s]nitch[.]” ASSOCIATION, Washington non- Aside from Thompson’s Officer testimo- profit corporation, Plaintiff-Appel- ny, the evidence of Wilson’s intent was lant, minimal. Wilson was present in the gym when Anthony Defendant Gadson and
alleged co-conspirator Donte Edwards con- STATE FARM FIRE AND CASUALTY fronted Pitka about being a “snitch.” COMPANY, Ed- foreign insurance wards, who testified prosecution, company, for the Defendant-Appellee. never said that he shared with Wilson his No. 12-36021. suspicions that Pitka had been a confiden- United States Court of Appeals, tial informant. Pitka himself testified Ninth Circuit. nothing before, Wilson said himto during, assault, alleged after the Aug. and that Pitka why did not know he was attacked. Al-
though Pitka testified that he later be-
lieved it was because the government