United States v. YorkUnited States v. York
As Darvell York spoke to Tracy Mitchell about selling him “nine probably hard,” law enforcement was listening. Agents had set up a sting to buy nine ounces of crack cocaine from York, and Mitchell was their informant. At York’s trial, the government played the recorded conversations for the jury. Though York and Mitchell seemed to speak in plain English, without any reference to drugs, the government argued that they were really conversing in the cryptic, coded language of the narcotics trade. The government called two law enforcement witnesses to
I
On April 80, 2003, law enforcement executed the sting to buy crack from York. Agents equipped Mitchell with an audio transmitter and an audio recording device to monitor in real time and record any of Mitchell’s conversations. They gave him $6,500 cash to make the buy. Mitchell waited for York at a residential jobsite where Mitchell was supervising a landscaping crew, while a couple of blocks away agents looked on with binoculars and a video camera.
York first showed up in the early afternoon. As he talked to Mitchell, the covert audio devices picked up what he had to say:
MITCHELL:
____ So I was (U/I) going to get a half. You know what I’m saying? And then I was gonna boost the half up like, cause you can, how much can you make off of a half of one?
YORK:
I don’t know. It depends on the work you know? You still want the shit to be sellable, man. You know?
MITCHELL:
.... Just get you know what I’m saying? Nine, nine probably hard right? And then I’ll flip that mother fucker and then I’ll come back, cause she own [sic] me $20,000 for this. That’s all I got left to do right here.
YORK:
So what you trying to do now?
MITCHELL:
Just got, just bring me nine.
YORK:
(U/I) you want me to cook it?
MITCHELL:
What, it gonna be soft?
YORK:
Huh?
MITCHELL:
It’s gonna be soft?
YORK:
(U/I).... I ain’t did nothin’ in a while, I got to get another mother fucker to get it though. But it gonna be right though.
MITCHELL:
Okay. Well, that’s fine. But then I’m be here till like eight....
Mitchell and York then got into Mitchell’s van (which the police had previously searched for drugs and found none), and York told Mitchell, “get your money straight,” and said, “That shit costs, uh, six nigger.” They talked for a little while longer in the van, making a couple more references to numbers and money (“five dollar” and “fifty-five”). Then they got out and York took off in his car.
Mitchell then rendezvoused with the agents. They debriefed him and searched his person and his car. They did not find any drugs, but they did find that Mitchell had only $500 of the initial $6,500 they gave him. The agents instructed Mitchell
York pulled up around six o’clock that evening and this time he had somebody else in the car with him. Mitchell walked over to the passenger side of York’s car and started talking with York and the other man. Then York said, “That’s nine right, that’s nine like that, you wait on it.” The police watched with binoculars and the video camera, but Mitchell’s position blocked their view. So the officers could not see whether York handed something to Mitchell. After Mitchell and York chatted a bit more about Mitchell’s landscaping job, York left. Mitchell then circled back with the agents. They searched him and again found the $500 in cash. This time, however, they found something else — a clear plastic bag that contained nine ounces of crack cocaine.
York was indicted on one count of knowingly and intentionally distributing cocaine base (specifically crack) in violation of
At the second trial, the jury heard from a number of witnesses, including a chemist, a fingerprint expert, and a set of law enforcement officers. Two of those officers are of concern in this case. The first was FBI Agent Mike Brown, who was one of the .primary agents handling the investigation of York and who helped execute the sting. Brown explained the sting operation to the jury, described what the jurors saw as they watched the video of York meeting with Mitchell, and identified the voices in the audio recordings as Mitchell’s and York’s. He also said that he heard the sound of money being counted while eavesdropping when York and Mitchell were in the van. In addition, Brown described his meeting with Mitchell in between York’s visits, where Mitchell had only $500 of the original $6,500, and his rendezvous with Mitchell after York’s second visit, where Brown found Mitchell with what looked like (and was later determined to be) crack cocaine.
But the government did not use Brown solely as a fact witness. Brown had extensive experience in prior drug cases. So the government, without first formally offering Brown as an expert, asked Brown to give his opinion about the meaning of certain words and phrases that Mitchell and York used in their conversations. Brown obliged: “half’ meant half a kilo of cocaine, “nine” meant nine ounces, “hard” meant crack cocaine, “soft” meant powder cocaine, “work” meant the drug business, “cook” meant converting powder cocaine into crack, and “boost up” meant diluting a given quantity of cocaine into a larger volume to have more to sell. Brown also interpreted several words as references to money: York’s reference to “six” meant $6,000, which Brown said was the cost of the drugs; “five dollar” meant $500; and “fifty-five” meant $5,500.
Brown wasn’t the only witness to interpret the drug lingo in the recorded conversations. The government called (and formally offered) Officer Robert Coleman as an expert witness. Coleman had extensive experience in narcotics investigations but he was not involved with York’s investiga
The jury convicted York of delivering 50 grams or more of cocaine base. The district court sentenced York to 360 months’ imprisonment and 10 years of supervised release.
York appeals both his conviction and his sentence. York seeks a new trial by arguing that the district court should have excluded both Brown’s and Coleman’s interpretation testimonies. We review each agent’s testimony in turn. York seeks re-sentencing based on the retroactive amendment to the crack cocaine guidelines.
II.
A. Agent Brown’s Interpretation Testimony
York levels an array of attacks against Brown’s interpretations of the drug jargon that laced York’s and Mitchell’s recorded conversations. Through various interrelated arguments, York contends that Brown’s interpretation testimony was inadmissible under
To begin, we must determine whether Brown’s interpretations were admissible only as expert opinion testimony under
Expert testimony has its benefits for the party who offers it, but it also has its burdens.
1. Qualifying Agent Brown as an “Expert”
York argues that the government failed to fulfill a number of these burdens when it asked Brown to opine on the meaning of York’s and Mitchell’s conversations. First, York contends that Brown’s interpretation testimony should have been excluded because the district court failed to formally “qualify” Brown as an expert and did not permit York to conduct a
voir dire
regarding Brown’s qualifications. District courts have a “gatekeeping” duty to ensure that witnesses do not offer expert testimony before the court is satisfied that
We are hard-pressed to say that York’s general foundation objection preserved any challenge to Brown’s qualifications, the lack of
voir dire,
or whether Brown’s testimony was based on “sufficient facts or data” and “reliable principles and methods.”
See
Along these lines, we find that York suffered no prejudice by being unable to conduct a formal
voir dire
of Brown before he testified. York was able to and did cross-examine Brown on his qualifications and methods at trial. On appeal, York gives us no reason to question those qualifications or methods. So we won’t.
See Oriedo,
2. Expert Disclosure Requirements
Next, York hints that the government ignored the expert disclosure requirements of
York next argues that Brown interpreted some words and sounds that were not drug code and therefore needed no interpretation. Specifically, York challenges Brown’s interpretation of the numbers “six,” “nine,” “five dollar,” and “fifty-five,” as well as Brown’s comment that he heard the sound of money being counted over the audio transmitter. This testimony, according to York, exceeded the proper scope of expert testimony under
Turning to that first claim, we have discussed that the Rules of Evidence allow expert law enforcement witnesses to translate drug jargon and code words that might seem entirely innocuous to an untrained jury.
United States v. Ceballos,
In
Ceballos,
Here, the terms “six,” “nine,” “five dollar,” and “fifty-five” were facially ambiguous. York told Mitchell, “That shit costs ... six ... ”, and then later said, “That’s nine right, that’s nine like that, you wait on it.” The question is, six and nine of what? Though York’s reference to “cost” gives the jury some indication that “six” refers to payment, the term “six” was still sufficiently ambiguous (does it mean money or something else and how much?). The references to “five dollar” and “fifty-five” were equally unclear. Given our decisions in Ceballos and Rollins, we have no qualms concluding that Brown’s interpretation of these vague terms would assist the jury.
4. Foundation for Agent Brown’s Interpretations
But that alone doesn’t mean Brown’s testimony was admissible —
York supports his view with the Second Circuit’s opinion in
United States v. Dukagjini,
We find York’s view too narrow. Experts need not establish that certain words have fixed meanings only in the narcotics world or in the particular conspiracy before they can interpret those words. Experts can determine, based on their expertise, that certain words have drug-related meanings within the context of a single conversation. In
Ceballos,
for example, agents interpreted the words “it,” “them,” and “both” as referring to shipments of methamphetamine.
The same is true here. Mitchell’s and York’s conversations were laced with words that Brown testified were common drug parlance (and did have fixed meanings in the drug trade) — i.e., “soft” meant powder cocaine, “hard” meant crack cocaine, and “cook” meant processing powder into crack. Brown knew Mitchell and York were talking about drugs. So when Mitchell asked for “nine, nine probably
hard,”
the word “nine” was not just dangling in the conversation, unlinked to any drug code word, as York suggests. “Nine” and “hard” went together, just like “four, five, and six” went together with “meals” in
Moon,
Brown also had a sufficient basis, though not an expert basis, to testify that he
5. Dual Testimony
But did Brown actually rely on his expertise when he interpreted the code words? Or did he rely on some other basis, such as a conversation with the non-testifying Mitchell, which might pose problems under the Rules of Evidence and the Sixth Amendment? That’s the crux of York’s final two challenges to Brown’s testimony — the dual nature of Brown’s testimony and the Confrontation Clause concerns that such dual testimony raises. Because Brown’s general “basis of knowledge” objection did not preserve these two claims, we review them only for plain error.
United States v. Pree,
York argues that Brown impermissibly testified as both an expert and a fact witness in the same trip to the witness stand. Though such a practice is routinely upheld, particularly where experienced law enforcement officers were involved in the particular investigation at issue,
e.g., United States v. Mansoori,
Given these dangers, district courts must take some precautions to ensure the jury understands its function in evaluating this evidence.
Id.
The jury needs to know when an agent is testifying as an expert and when he is testifying as a fact witness. “The potential for prejudice in this circumstance can be addressed by means of appropriate cautionary instructions and by examination of the witness that is structured in such a way as to make clear when the witness is testifying to facts and when he is offering his opinion as an expert.”
Mansoori,
The protective steps taken in this case were not the model of how to handle a witness who testifies in a dual capacity. We recognize that the government established an adequate foundation for Brown’s testimony, as we have discussed, outlining his years of expertise with drug investigations. And we certainly credit the fact that the court put no limits on York’s opportunity to cross-examine Brown; York’s counsel took full advantage of that
But the court and the government were less vigilant in instructing the jury and structuring Brown’s testimony. For instance, though the court did instruct the jury on how it should evaluate opinion testimony from witnesses with special knowledge or skill, this instruction came at the end of the trial. It would have been far more effective for the court to have explained Brown’s dual role to the jury before Brown testified and then flag for the jury when Brown testified as a fact witness and when he testified as an expert.
See Upton,
What gives us the greatest cause for concern, though, is the structure of Brown’s testimony. The government started off well. It appropriately signaled to the jury that Brown was relying on his expertise and not his knowledge of York’s investigation when it asked Brown whether, during his involvement in over 200 investigations, he learned some terms of the drug trade. In its follow-up questions, the government took a similar tack, prefacing its questions with phrases like, “based on your experience in crack cocaine investigations .... ” This structure helped minimize jury confusion.
See Farmer,
But then things got murky. The government switched back to questioning Brown about the investigation, which of itself might not have been problematic, had the government not decided, several moments into Brown’s factual testimony, to go back and question Brown about a few more code words — “six,” “fifty-five,” and “five dollar.” Seamlessly switching back- and-forth between expert and fact testimony does little to stem the risks associated with dual-role witnesses. Even more problematic was the way in which the government prefaced these questions: “Based on your experience of [sic] crack cocaine investigations
and this investigation in particular
.... ” (emphasis added). This phrasing explicitly mixed Brown’s dual bases of knowledge, leaving the jury to wonder who was testifying, Brown-the-expert or Brown-the-case-agent. Given this heightened possibility for juror confusion, coupled with the lack of a timely cautionary instruction and the fact that we cannot discern whether Brown’s interpretations were actually based on his expertise or a conversation with Mitchell, we conclude that the court erred in admitting Brown’s responses to the government’s questions about “six,” “fifty-five,” and “five dollar.” (We will address whether those were
plain
errors momentarily.) Other than these three interpretations, though, Brown’s testimony did not offend
6. Confrontation
Lastly, York argues that Brown’s interpretation testimony violated his Sixth Amendment right “to be confronted with the witnesses against him.” York’s argument grows out of
Crawford v. Washington,
in which the Supreme Court held that
In this case, the government offered Mitchell’s recorded statements to help the jury to understand York’s statements during his dealings with Mitchell. Mitchell’s statements were not offered for their truth — i.e., it was irrelevant whether Mitchell actually desired nine ounces of cocaine or intended to “boost up” the drugs. Mitchell’s statements were offered to show how York reacted to them. For example, after Mitchell said, “Just bring me nine,” York responded, ‘You want me to cook it?” Mitchell’s statement allowed the jury to understand that York was not offering to fix supper. In other words, Mitchell’s statements put York’s reactions into “context” and hence were not hearsay. Moreover, we see no indication that Mitchell tried to “put words into [York’s] mouth or ... persuade [York] to commit more crimes in addition to those that [York] had already decided to commit.”
Nettles,
York concedes as much here on appeal. But York contends that Brown’s interpretations of Mitchell’s statements make this case different. In essence, York argues that Brown’s interpretations transformed Mitchell’s recorded statements from merely providing context to being offered for their truth.
But interpreting an informant’s statements would not alter the government’s use of those statements. Brown translated Mitchell’s code words into terms that jurors could understand. If Mitchell had not used code and instead said plainly to York, “I need nine ounces of crack cocaine,” that statement would still be admissible as context for York’s responses. Whether Mitchell spoke to York in drug lingo or plain English would not affect the purpose for which those statements were used. Because Mitchell’s out-of-court statements, translated or untranslated, were offered as context for York’s side of these inculpatory discussions, they do not implicate the Confrontation Clause.
We might have a confrontation problem, however, if Brown based his interpretations on his own conversations with Mitchell and not on his knowledge of the drug trade and review of the transcripts.
See
But we see little or no evidence of that here. Brown did speak to Mitchell during the investigation: he “debriefed” Mitchell after both encounters with York. Brown testified that, after the first encounter, he told Mitchell to “go back and wait for Mr. York to deliver the quantity of drugs that he just ordered.” York argues that Brown’s knowledge of Mitchell’s “order,” including the details of that order (e.g., the thing ordered, quantity, and cost), could only have come from a conversation with Mitchell. Not so. As we have discussed, Brown had a working knowledge of the meanings of drug jargon and code words. Brown listened to Mitchell’s and York’s conversations in real time and, by the time he debriefed Mitchell, was well aware that they were negotiating a drug transaction. Moreover, before testifying at trial, Brown reviewed the transcripts of the recordings and testified about the meaning of certain words based on his experience. We have no indication that those interpretations were based on conversations with Mitchell. All we have is a mere possibility of an impermissible basis for three of those interpretations — “six,” “fifty-five,” and “five dollar” — which Brown defined relying on both his expertise and involvement in York’s investigation. Because we have already excluded those interpretations as improperly safeguarded dual testimony, however, we need not decide whether their admission also violated Crawford.
In sum, we find that most of Brown’s interpretation testimony was admissible. However, given the lack of precautions taken to minimize the dangers of dual testimony, Brown’s interpretations of “six,” “fifty-five,” and “five dollar” as referring to certain dollar amounts should have been excluded.
B. Officer Coleman’s Interpretation Testimony
York also challenges Coleman’s testimony. Like Brown, Coleman interpreted the drug jargon and code words in York’s and Mitchell’s conversations. Unlike Brown, Coleman was formally qualified as an expert and had no experience with York’s investigation beyond reviewing the audio recording transcripts. Still, York argues that the district court should have excluded Coleman’s testimony for two of the same reasons that he believes Brown’s testimony was inadmissible.
First, York contends that Coleman’s testimony violated the Confrontation Clause. But we know from our previous discussion of this issue that York’s argument here must fail. Simply because Coleman interpreted Mitchell’s words based on his expertise did not change the government’s use for playing the audio tapes — to provide context for York’s admissions. Using the tapes and Coleman’s interpretation of them did not implicate
Crawford.
Moreover, Coleman was not involved in the investigation and never spoke with Mitchell. Coleman interpreted Mitchell’s statements based solely on his expertise; York does not contend otherwise. So Coleman’s testimony did not
Second, York argues that Coleman interpreted words that needed no interpretation, thereby exceeding the proper scope of expert testimony. York challenges all of Coleman’s interpretation testimony and specifically targets Coleman’s translation of numbers like “six” and “nine” as well as his interpretation of the phrase “get your money straight” (a phrase on which Brown did not comment). We review for an abuse of discretion.
Farmer,
As we have discussed, York’s and Mitchell’s vague or coded references to drugs and money were ambiguous and not readily understood by lay jurors. So Coleman’s interpretations of words like “hard,” “soft,” “six,” and “nine” assisted the jury in understanding those words.
This reasoning also extends to Coleman’s interpretation of “get your money straight.” York contends that Coleman’s testimony was unhelpful because this phrase had no other reasonable interpretation than the one Coleman gave it: ‘York is telling Mitchell to get his money together for the nine-ounce purchase.” We disagree. The phrase might have meant a variety of things, such as “get your money from a clean source,” or it might have referred to a desire for bills of certain denominations, or York might have been telling Mitchell to physically straighten up the cash he brought with him. In other words, we think the phrase “get your money straight” was just another form of drug slang and, without Coleman’s interpretation, would have remained ambiguous to jurors. The court did not err in admitting that interpretation.
C. Harmless Error
To review where we are at this point, we think that the district court should have excluded Brown’s interpretations of “six,” “fifty-five,” and “five dollar” as improper dual testimony. But that doesn’t mean we must reverse. Under either a plain error standard or an abuse-of-discretion standard, if those errors were harmless, York’s conviction will stand.
United States v. Ortiz,
We are convinced that failing to exclude these three interpretations was harmless; the evidence against York was overwhelming. The jury knew that after Mitchell’s first meeting with York, Mitchell had $6,000 less than when he started. And after their second meeting, Mitchell had nine ounces of crack cocaine on him. The admissible portions of Brown’s testimony and all of Coleman’s bolstered the inference that Mitchell and York negotiated
III.
York wants to petition the district court to reduce his sentence in light of the retroactive application of the revised crack guidelines.
See
Supplement to the 2007 United States Sentencing Guidelines Manual at 1-4 (Mar. 3, 2008) (U.S.S.G. § lB1.10(c)); United States Sentencing Commission Guidelines Manual, Supplement to Appendix C, 226-31 (2008) (Amendment 706). So he asks us to remand his sentence. But remand is not required to pursue that avenue of relief.
United States v. Tatum,
IV.
In light of the foregoing, we affirm the judgment of the district court.