US v. Michael White

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00491-RDB-12 Copies to all parties and the district court/agency. [999079027].. [11-5181, 12-4158]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5181

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL LAWRENCE WHITE, a/k/a Big Boy,
Defendant - Appellant.

No. 12-4158

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR ANDRE THOMAS, a/k/a Flak, a/k/a Flat,
Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cr-00491-RDB-12; 1:10-cr-00491-RDB-3)

Argued:

January 30, 2013

Decided:

Before MOTZ, KING, and FLOYD, Circuit Judges.

April 3, 2013

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Affirmed by unpublished per curiam opinion.

ARGUED: Ruth J. Vernet, RUTH J. VERNET, ESQ., LLC, Rockville,
Maryland; Gary Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC,
Baltimore, Maryland, for Appellants.
Christopher John Romano,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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a

Maryland,

PER CURIAM:
In

2010,

Harford,

drug

trafficking

investigation yielded the arrests of Appellants Victor Thomas
and

White. 1

Michael

Thomas

and

White

were

charged

with

conspiracy to distribute cocaine and cocaine base, in violation
of 21 U.S.C. § 846, and possession with intent to distribute the
same,
Thomas

in

violation

was

charged

of

21

with

U.S.C.
felony

§ 841(a)(1).
possession

of

Additionally,
a

firearm,

and

White

in

violation of 18 U.S.C. § 922(g)(1).
Following

a

four-day

jury

trial,

Thomas

were

convicted on both the conspiracy charge and the drug charge; a
hung jury resulted on Thomas’s gun charge.

Thomas and White now

appeal their convictions on multiple grounds.

Because we find

their arguments lacking in merit, we affirm.

I.
Thomas

and

White

put

forth

evidence introduced at trial.

several

challenges

to

the

One of these issues they raised

below; the others they did not.

We review each alleged error in

1

Twelve other individuals were also apprehended. Eleven of
them pled guilty. The twelfth, Rochelle Stokes, was tried with
Thomas and White but was acquitted via a Rule 29 motion for
judgment of acquittal at the end of the government’s case.

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keeping with the preservation diligence, or lack thereof, that
Thomas and White exercised.

A.
Thomas and White first allege that the district court erred
in declining to suppress evidence retrieved via wiretap.

We

review the factual findings underlying a motion to suppress for
clear error; the legal conclusions we review de novo.
States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008).

United
In every

instance, we view the evidence in the light most favorable to
the party that prevailed below—in this instance, the government.
United States v. Jamison, 509 F.3d 623, 628 (4th Cir. 2007).
The Harford County Narcotics Task Force (HCNTF) conducted
the drug investigation leading to the apprehension of Thomas and
White.

As part of its efforts, the HCNTF obtained authorization

to wiretap a cell phone number connected to Thomas.

The HCNTF

monitored this number from April 26, 2010, to May 5, 2010, and,
during that time, intercepted nearly two thousand phone calls.
Thomas

and

White

maintain

that

the

HCNTF’s

interceptions

violated both federal law and attorney-client privilege.
Governmental wiretaps must comport with Title III of the
Omnibus Crime Control and Safe Streets Act (Omnibus Act), 18
U.S.C.

§ 2510-2522,

individuals’

right

to

a

statute
privacy

that

against
4

attempts
the

to

beneficial

balance
inroads

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that electronic monitoring can provide in fighting crime, United
States v. Clerkley, 556 F.2d 709, 712 (4th Cir. 1977).

Relevant

to this case, the Act requires the government to minimize its
interceptions where possible to avoid monitoring communications
that are nongermane to a suspected offense.

18 U.S.C. § 2518(5)

(“Every order [authorizing a wiretap] . . . shall be executed as
soon as practicable, [and] shall be conducted in such a way as
to

minimize

the

interception

of

communications

not

otherwise

subject to interception under this chapter . . . .”).
Thomas and White assert that the HCNTF violated the Omnibus
Act by failing to minimize any of its interceptions on Thomas’s
phone.

They also aver that because one of the intercepted calls

was placed to an attorney, the HCNTF violated attorney-client
privilege.
during

the

Notably,
call

Thomas

that

Thomas

did
and

not

speak

White

with

the

reference;

attorney

he

left

a

voicemail message in which he simply inquired about a court date
for a civil case and asked the attorney to return his call.
When Thomas asked the attorney to return his call, however, he
provided a phone number different from the number that the HCNTF
was monitoring.
Based on these alleged violations, Thomas and White moved
pre-trial to suppress all evidence “derived from” the wiretaps.
The

district

court

denied

the

motion,

concluding

that

wiretap on Thomas’s phone lacked “any minimization issues.”
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the

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1.
We

think

it

pertinent

to

note

at

the

outset

that

the

government has not clearly indicated whether the HCNTF indeed
minimized

any

of

responding

to

maintained

that

HCNTF’s

its

interception

on

pre-trial

motions,

given

nature

interceptions

the

requirement of the Omnibus Act.

the

of

comported

Thomas’s

the

with

phone.

government

In
simply

investigation,
the

the

minimization

Furthermore, at the pre-trial

motions hearing, when the court queried the government, it again
responded

in

a

manner

that

lacked

any

firm

indication

of

minimization:
I’m not in a position to advise the court at this
point.
I asked the detective were in fact calls
minimized and his response to me was there may be
calls where portions of them were minimized. I can’t
speak with any more specificity than that. There were
calls I don’t think were minimized in their entirety.
There may have very well have been calls that were
minimized in part.
The government’s brief here is no more enlightening.

In fact,

it noticeably lacks any delineation of minimization efforts or
explicit denial of Thomas and White’s allegation that “out of
thousands of calls not one was minimized.”
We are not unaware of the statutory framework that exists
for addressing alleged violations of the Omnibus Act.
U.S.C.

§ 3504(a)(1)

(providing

that

when

an

aggrieved

See 18
party

alleges that “evidence is inadmissible because it is the primary

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product of an unlawful act [under the Omnibus Act] or because it
was

obtained

by

the

exploitation

of

an

unlawful

act,

the

opponent of the claim shall affirm or deny the occurrence of the
alleged unlawful act”); United States v. Apple, 915 F.2d 899,
905 (4th Cir. 1990) (recognizing that if allegations brought
under § 3504(a)(1) lack specificity, the government can respond
with

a

general

denial).

Because

Thomas

and

White

have

not

contested the adequacy of the government’s response, however, we
decline to rule on whether such response was sufficient as a
matter

of

law.

Rather,

we

simply

document

the

government’s

persistent equivocation on this point and note that it forces us
to proceed, for the sake of argument only, on the assumption
that Thomas and White’s allegation of zero minimization is true.
Even assuming the truth of this allegation, however, we find no
error in the admission of the wiretap evidence.

a.
Assessing
mandate

of

governmental

the

Omnibus

compliance

Act

is

not

with
a

the

minimization

formulaic

process.

Reasonableness is the overarching standard, but the facts of
each

case

heavily

impact

a

determination

of

whether

the

government’s behavior was in fact “reasonable.”

Clerkley, 556

F.2d

minimization]

at

716

(“In

testing

compliance

with

[the

requirement, the courts have proceeded on a case-by-case basis,
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standard

of

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reasonableness.”).

We

employ

three

factors in our evaluation: “(1) the nature and scope of the
alleged

criminal

expectation

as

enterprise;
to

the

content

the

(2)

government’s

of,

and

reasonable

parties

to,

the

conversations; and (3) the degree of judicial supervision while
the wiretap order is being executed.”

Id.

b.
Here,
minimized
complied

we

conclude

any

of

with

the

that

its

regardless

interceptions

mandate

in

of

whether

Thomas’s

Omnibus

the

on

Act.

the

HCNTF

phone,

it

First,

the

“nature and scope” of Thomas’s and White’s criminal activities
weighs in favor of unrestricted interceptions.

This Court has

previously recognized that “[w]hen law enforcement officials are
confronted with large, far-flung and on-going criminal activity
involving multiple parties, they are afforded greater latitude
in

conducting

Quintana,

508

sophisticated

wiretaps.”
F.2d

867,

narcotics

Id.;
874

see

(7th

conspiracies

also
Cir.
may

United
1975)

justify

States

(“Large

was

included

at

investigating
least

an

thirteen

elaborate

drug

individuals.

and

considerably

more interception than would a single criminal episode.”).
HCNTF

v.

conspiracy
Without

a

The
that

doubt,

Thomas’s and White’s conduct was “far-flung,” “on-going,” and
“involve[ed]

multiple

parties.”
8

Clerkley,

556

F.2d

at

716.

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Thus, the HCNTF had “greater latitude” in executing its wiretap
than it might have otherwise had if the investigation involved
fewer individuals and isolated crime.
that

a

ten-day

unrestricted

wiretap

We conclude therefore
on

Thomas’s

phone,

when

examined in light of the first reasonableness factor, satisfied
the minimization requirements of the Omnibus Act.

Clerkley, 556

F.2d at 716-17 (“[T]he legitimate investigation of conspiracies
may

necessitate

communications

the

over

interception
a

of

given

period

the

HCNTF’s

of

all

or

almost

all

time.”)

(collecting

“reasonable

expectation”

cases).
Second,
regarding

we

the

consider
“content

interceptions.

of,

Id. at 716.

and

parties

to”

the

anticipated

Here, we are concerned with whether

the HCNTF had “sufficient advance knowledge” such that it could
“tailor [its] minimization efforts.”
Outside

of

excerpts

from

the

Id. at 717.
order

that

authorized

the

wiretap on Thomas’s phone, 2 the record provides little assistance
on this point.

Nevertheless, we again conclude that the HCNTF

was justified in not minimizing its interceptions.

In relevant

part, the order states,
2

The excerpts that Thomas and White have provided here are
from an order that authorized a wiretap for another defendant.
Regardless, because the government has cited to these excerpts
in its brief, we rely on them as accurate reflections of the
authorizing order for Thomas’s phone.

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Due to the nature of this electronic surveillance
investigation, . . .
and
the
fact
that
personal
conversations during intercepted calls may frequently
be interwoven with or precede conversations of a
criminal nature, initially, for the first three days,
all calls intercepted will be both monitored and
recorded for approximately three (3) minutes before
spot monitoring will be utilized.
. . . After the
first three days, plant operators are to consider the
previously established patterns of conversations, if
any, and the identities of the conversants in
determining when a conversation is of a non-pertinent
nature. 3
Although this excerpt does not provide explicit indication of
the

“advance

authorization

knowledge”
to

intercept

possessed
the

by

initial

the

three

HCNTF,

minutes

of

its
all

calls for the first three days implies a less-than-robust level
of “advance knowledge.”
the

order’s

grant

of

And this implication is bolstered by
full

discretion

conversations

to

plant

were

operators

pertinent

to

in

distinguishing

which

the

investigation.

These factors lead us to again conclude that to

the extent the HCNTF failed to minimize any of its interceptions
on Thomas’s phone, such action was reasonable.

3

The record lacks any quotes from the applications and
affidavits on which the authorizing judge based his finding of
probable cause for issuance of the order.
We note, however,
that Thomas and White have not contested the district court’s
pre-trial finding that the order was supported by “ample
probable cause.” Accordingly, we rely on what the order implies
regarding the facts that necessitated its issuance, viewing it
in a manner that favors the government.
See Jamison, 509 F.3d
at 628.

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Finally, we address the third factor, judicial supervision.
As to this step, the record is silent.

We may still conclude,

however, that the HCNTF’s presumably unrestricted interceptions
were

reasonable.

[authorizing]

While

judge

to

the

ask

Omnibus

for

Act

interim

permits

reports

“the

from

the

investigating agents,” it does not require that the judge do so.
Quintana, 508 F.2d at 875 (noting that “[t]he statute permits
but

does

§ 2518(6)

not

require”

(“Whenever

interim
an

reports);

order

see

also

authorizing

18

U.S.C.

interception

is

entered pursuant to this chapter, the order may require reports
to

be

made

progress

has

to

the

been

judge
made

who

issued

toward

the

achievement

order
of

showing

the

objective and the need for continued interception.

what

authorized

Such reports

shall be made at such intervals as the judge may require.”).
Accordingly, even assuming that the HCNTF provided no progress
reports to the authorizing judge, its unrestricted interceptions
were not per se unlawful.
the

authorizing

judge

Cf. Clerkley, 556 F.2d at 718 (“Where

required

and

reviewed

interim

reports,

courts have been more willing to find a good faith attempt at
minimization.” (citing Quintana, 508 F.2d at 875)).
Having reviewed the limited record and the circumstances
under which the HCNTF conducted its wiretap on Thomas’s phone,
we conclude that the HCNTF acted reasonably, even if it failed
to minimize any of its interceptions.
11

Simply put, Thomas and

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White have produced no evidence that compels us to find error.
And although the government’s evidence is slim, we must examine
it in a manner that inures to its benefit.
628.

Accordingly,

we

hold

that

the

Jamison, 509 F.3d at

district

court

properly

denied Thomas and White’s motion to suppress the government’s
wiretap evidence based on their contention that the HCNTF failed
to minimize its interceptions.

2.
We

turn

government
intercepting

now

to

violated
his

Thomas

and

Thomas’s

voicemail

White’s

allegation

attorney-client

message.

subject to harmless error review.

that

the

privilege

by

Evidentiary

rulings

are

See United States v. Cole,

631 F.3d 146, 154 (4th Cir. 2011) (“[A] conviction will not be
overturned on account of an erroneous evidentiary ruling when
that error is deemed harmless within the meaning of Federal Rule
of Criminal Procedure 52(a).”).

Under this standard, “to find a

district court’s error harmless, we need only be able to say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.”

United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (quoting United States
v. Heater, 63 F.3d 311, 325 (4th Cir. 1995)) (internal quotation
marks

omitted).

Here,

we

conclude
12

that

any

violation

of

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privilege

was

harmless;

thus,

we

decline to rule on whether the district court properly denied
Thomas and White’s suppression motion on this basis.

See United

States v. Banks, 482 F.3d 733, 741 (4th Cir. 2007) (“We need not
decide whether the district court erred . . . because we hold
that any error would be harmless . . . .”).
Thomas and White allege,
Given the obvious importance of the call, as well
as the fact that the interception occurred early in
the investigation, there is a substantial probability
that
evidence
derived
from
the
privileged
and
indisputably important call was improperly used as a
basis for further wiretaps or was introduced at
trial . . . .
And the government counters,
[W]hile
the
call
was
pertinent
from
the
standpoint that Thomas provided a different number
than the one he was calling from, no conversations on
the other phone number were ever obtained.
The only
line that was intercepted by investigators with regard
to Thomas was the number from which he placed the call
to the attorney’s [voicemail] system.
The

government

has

indicated

that

it

did

not

intercept

calls on the alternate number given by Thomas, and Thomas and
White

have

otherwise.

provided

no

evidence

leads

us

to

conclude

Moreover, Thomas’s inquiry related to a civil case,

not this criminal matter.
violation

that

of

Thomas’s

Accordingly, we conclude that any

attorney-client

privilege

was

harmless,

and we decline to reverse Thomas’s and White’s convictions on

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the ground that the government’s wiretap evidence should have
been suppressed.

B.
Next, we consider the three evidentiary claims that Thomas
and White failed to raise below:
criminal

history

under

Federal

(1) that admission of their
Rule

of

Evidence

404(b)

was

unduly prejudicial, (2) that Detective Brandon Underhill lacked
sufficient credentials for portions of his expert testimony, and
(3)

that

expert

Underhill

witness

testified

without

both

appropriate

as

a

fact

witness

safeguards

and

against

an

jury

confusion. 4
Because Thomas and White failed to preserve these issues,
our

“authority

circumscribed.”
(2009).

to

[provide

a]

remedy . . . is

strictly

Puckett v. United States, 556 U.S. 129, 134

Indeed, when a party does not inform a trial court of

an error at the time that it occurs, the party is barred from

4

The table of contents and facts section of Thomas and
White’s brief indicates their belief that other law enforcement
officers also provided expert testimony regarding matters about
which they had not been qualified as experts, and that the
district court erred in admitting such testimony.
Because
Thomas and White failed to develop this apparent argument in the
body of their brief, we decline to consider it here.
See Fed.
R. App. P. 28(a)(9)(A) (requiring the argument section of an
appellant’s
opening
brief
to
include
the
“appellant’s
contentions and the reasons for them”).

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raising that issue on appeal, id. at 135, unless it can show
that

an

error

“(1)

was

made,

(2)

is

plain

(i.e.,

clear

or

obvious), and (3) affects substantial rights,” United States v.
Strieper,

666

F.3d

288,

295

(4th

Cir.

2012)

(quoting

States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010)).

United

Even then,

we “may exercise [our] discretion to correct the error only if
it

‘seriously

affects

the

fairness,

reputation of judicial proceedings.’”

integrity

or

public

Id. at 295 (alteration in

original) (quoting Lynn, 592 F.3d at 577).

1.
First,
admission

we
of

Evidence

review

their

404(b)

Thomas

criminal

was

unduly

and

White’s

history

under

contention

that

Federal

of

Federal

prejudicial.

Rule
Rule

of

Evidence 404(b) disallows admission of “[e]vidence of a crime,
wrong, or other act . . . to prove a person’s character in order
to

show

that

on

a

particular

occasion

accordance with [that] character.”
admissible
requisite

to

prove,

“intent”

or

inter

alia,

“knowledge”

the

person

acted

in

Although such evidence is
that
to

a

defendant

commit

the

had

the

crime

in

question, Fed. R. Evid. 404(b)(2), it becomes inadmissible if
its “probative value is substantially outweighed by a danger
of . . . unfair prejudice,” Fed. R. Evid. 403.

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a.
Pre-trial, the government filed a motion seeking to admit
evidence of a prior narcotics conviction for each appellant and
a

prior

firearm

conviction

for

Thomas.

The

district

court

granted the motion, reasoning that the evidence was admissible
because

it

related

to

the

knowledge

and

intent

necessary

commit the crimes for which Thomas and White were on trial.

to
It

also reasoned that the evidence would not unfairly prejudice
Thomas and White under Federal Rule of Evidence 403 because it
did

not

“involve

conduct

that

was

any

more

sensational

or

disturbing than the crimes” with which Thomas and White were
charged

in

the

present

case.

Accordingly,

at

trial,

stipulation of the parties, the government stated,
White, on or about October 27 of 2001, was convicted
and sentenced . . . for the crimes of controlled
dangerous
substance,
manufacture,
distribution
of
narcotics and possession with intent to distribute
narcotics. This evidence is relevant to the issue of
knowledge and intent regarding the crime for which the
defendant stands accused.
Further, regarding Thomas, it stated,
Thomas, on or about August 12, 1992, was convicted and
sentenced . . . for
the
crime
of
conspiracy
to
distribute cocaine, and[,] . . . on or about October
10, 1997, was convicted and sentenced . . . for the
crime of attempted distribution of cocaine[, and] on
or about June 22, 1994 . . . was convicted . . . on
two counts of criminal possession of a weapon in the
third degree, to wit, handguns.

16

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court

then

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immediately

instructed

the

jury

as

follows:
This evidence is being offered only on the issue of
knowledge and intent. It is not to be accepted by you
that someone is a bad person because of a prior
conviction, it is not to be considered by you in terms
of a propensity to commit an offense.
It is merely
being offered on the issue of knowledge and intent,
which is very important in this case, and it’s being
offered in that context alone and no other context.
Following

this

clarification

from

the

court,

the

government

case,

but

proceeded with the remainder of its case.
After

the

government

closed

its

prior

to

presentation of defense evidence and witnesses, Juror Number 12
submitted

a

list

questions

said,

of

questions

“What

is

to

meant

the

by

the

court.

One

stipulation

knowledge and not to show good or bad person?”

of

the

for

her

After a bench

conference in which the judge shared the questions with counsel
for each party, he said to the jury, “Ladies and gentlemen,
actually

[J]uror

questions, . . . I
have . . . known

Number
have

to

the

12,
made

lawyers,

whatever fashion they want.”

with
those
they

respect

to

questions
can

address

those

that
them

you
in

Counsel for Thomas and White did

not object to the manner in which the court dealt with Juror
Number 12’s questions.
During closing arguments, counsel for White and counsel for
the government both referenced the purpose for which the prior

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conviction evidence was admitted.
government

stated,

“Now,

In its closing argument, the

[counsel

for

White]

in

his

opening

[argument] told you that his client, I think the word he used
was a p[au]per.

Most respectfully, I don’t think there’s any

evidence for that, but I submit to you what there is evidence
[of] is that he’s a criminal.”

Similarly, in rebuttal, the

government stated,
Mr. White’s status is not the issue in this case,
ladies and gentlemen.
His status is not an issue.
He’s a criminal.
Because the evidence that we
presented over the last week establishes that he’s
guilty.
And as such, the government has proven his
criminal conduct. We’re not here to prove his status
or attack him as a person.
Again, counsel for Thomas and White recorded no objection to
these statements.
Here, Thomas and White cite Juror Number 12’s question and
the government’s statements during closing as evidence that they
were unfairly prejudiced by admission of the prior conviction
evidence.

We disagree.
b.

First, Thomas’s and White’s prior convictions were similar
to the charges they faced in this case.
therefore

relevant

to

whether

they

Such evidence was

possessed

the

requisite

knowledge and intent to commit the narcotics crimes with which
they were charged.

Furthermore, immediately after admission of

the evidence, the court provided clear instructions to the jury
18

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as

to

Doc: 78

the

Thomas

legitimate

and

White

instruction

was

resulted.
ensued.

Filed: 04/03/2013

But

implications

argue,

of

insufficient
they

Pg: 19 of 33

fail

to

of

the

course,

to

that

assuage

tell

us

prior

convictions.

this

the

limiting

prejudice

exactly

what

that

prejudice

In their brief, they argue,

When the jurors stated mid-trial that they did not
understand the court’s [404(b)] instructions regarding
use of prior acts to establish whether the defendant
is a “good or bad person,” the court was presented
with clear evidence of unfair prejudice . . . and
[had] an obligation to take appropriate corrective
measures at that time.
But

such

is

not

the

case.

First,

“the

jurors”

did

not

collectively state anything regarding a lack of understanding.
Rather, one juror, Juror Number 12, posed a question regarding
the appropriate use of the evidence.

Moreover, Juror Number

12’s question did not “present[]” the court “with clear evidence
of unfair prejudice.”

Instead, it simply revealed confusion

about the court’s limiting instruction.
confusion

resulted

in

unfair

To the extent that such

prejudice,

that

result

is

not

“clear or obvious” to us, as the plain error standard requires.
Second,
comments

we

decline

to

conclude

during

closing

arguments

that

caused

the
unfair

government’s
prejudice.

Taken in context, neither comment clearly referred to White’s
prior conviction; rather, the statements simply urged that on
the whole, the evidence presented during trial indicated that
White was “a criminal.”

In our view, the comments referred to
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White’s status based on his actions in the present case; they
did not beseech the jury to issue a guilty verdict based on
White’s prior criminal conduct.

To the extent that the comments

were interpreted as a reference to White’s prior conduct, such a
result is not “clear or obvious.”

Thus, we decline to reverse

Thomas’s and White’s convictions based on the district court’s
admission of evidence regarding their previous crimes or the
government’s statements during closing argument.

2.
Next, we review Thomas and White’s contentions regarding
Underhill’s testimony: (1) that portions of it were unsupported
by a reliable methodology and (2) that it mixed fact testimony
and expert testimony, such that the jury was confused.

a.
When the government called Detective Underhill to testify
as an expert, he indicated that he had been employed by the
Harford County Sheriff’s Office for ten years and that he was
presently assigned to work with the HCNTF.

He testified that he

had been with the HCNTF for “just over four years” and that his
primary duties were “investigations of mid to upper level drug
traffickers and drug trafficking organizations in and around the
Harford County area.”

Underhill further testified that he had
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received

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forty

hours

of

Pg: 21 of 33

specialized

training

related

to

narcotics investigations and had participated “in hundreds of
arrests involving drug investigations.”

He also stated that he

had completed course work in other specialized areas related to
drug investigations and undercover operations.

Underhill noted

that he had acted in an undercover capacity and that in that
role

had

purchased

marijuana.

cocaine,

Underhill

also

crack

cocaine,

attested

that

he

oxycodone,
had

acted

and
as

a

monitor of phone calls for wiretap investigations; he estimated
that he had monitored between 10,000 and 15,000 drug-related
phone conversations during his career.

Underhill testified that

he monitored the phone calls that were intercepted on Thomas’s
phone

in

this

case.

Relevant

to

such

monitoring,

Underhill

indicated that it was “common” for drug conspirators “to attempt
to

conceal

or

code

their

phone

conversations”

and

that

his

“training,” “knowledge,” and “experience” had made him “familiar
with those terms and codes.”
After the parties had an opportunity to examine Underhill
regarding his qualifications, the court asked, “Is there any
challenge to [Underhill’s] expertise with respect to the matter
of drug terminology and drug jargon from the point of view of
the defense counsel?”
objections.
testify

with

Defense counsel indicated that it had no

The court then qualified Underhill as an expert “to
respect

to

drug

jargon
21

and

drug

terms

and

the

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methodology

of

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drug

Pg: 22 of 33

distribution,”

cautioning

the

jury

that

“[a]s with all witness, [it was] up to [them] to accept or
reject [Underhill’s] testimony.”
Underhill went on to testify as to the meaning of certain
phrases and terms used in the phone calls that were intercepted.
For example, Underhill testified, “Jolly Rancher is a reference
to

crack

cocaine . . . and

cocaine.”

Lassie

is

a

reference

to

powder

He further testified as to the phrase “outfit in the

dryer,” explaining that “in the process of converting cocaine
hydrochloride into cocaine base there is a drying process that
has to take place and this is referencing that drying process.”
And

as

to

the

phrase

“I

don’t

think

Shorty’s

dressed

up,”

Underhill interpreted it to mean, “[a]ll [the seller] has is
cocaine powder, he doesn’t have any cocaine that’s been cooked
up into crack cocaine.”
At one point during Underhill’s testimony, referring to a
recorded

phone

call

that

had

been

played

for

the

jury,

government engaged in the following colloquy with Underhill:
Q.

Detective Underhill, there’s a reference to Mr.
Moore telling Mr. White that he was holding that
for him and Mr. White responding that he has the
change for that.

A.

Yes.

Q.

What is that a reference to, sir?

A.

Mr. Moore had cocaine for Mr. White and Mr. White
was indicating that he had money for him.
22

the

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Immediately following this testimony, without any objection by
defense

counsel,

the

court

initiated

a

bench

conference

and

cautioned the government to keep Underhill’s testimony within
“the ambit of an expert.”

In the court’s view, “the phrase I

was holding that for you in no way involve[d] expertise as to
drug language.”

The court did not strike this testimony or

instruct the jury to disregard it, however.
In

addition

to

providing

expert

testimony

as

to

the

interpretation of coded words and phrases from intercepted phone
calls,

Underhill

also

testified

as

a

fact

witness

regarding

various aspects of the case—the circumstances of arrests, the
recovery of drugs, and the execution of a search warrant.

When

Underhill provided this testimony, neither the parties nor the
court

distinguished

provided.

it

According

from
to

the

expert

Thomas

and

testimony
White,

that

he

“[Underhill]

seamlessly transitioned between lay and expert testimony.”
At

the

instructions,

end
the

of

the

court

trial,

during

referenced

its

Underhill’s

formal

testimony,

stating,
In weighing [expert] opinion testimony, you may
consider the witness’s qualifications, his or her
opinions, the reasons for testifying as well as all of
the other considerations that ordinarily apply when
you are deciding whether or not to believe a witness’s
testimony.
You may give the opinion testimony
whatever weight, if any, you find it deserves in light
of all of the evidence in this case. You should not,
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jury

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however, accept opinion testimony merely because I
allow the witness to testify concerning his or her
opinion, nor should you substitute it for your own
reason, judgment and common sense.

b.
Federal

Rule

of

Evidence

702

governs

the

admission

of

expert testimony, stipulating, inter alia, that “[a] witness who
is qualified as an expert . . . may testify in the form of an
opinion . . . if . . . the testimony is the product of reliable
principles

and

methods.”

Notably,

Thomas

and

White

challenge Underhill’s qualification as an expert.
contest

the

methodology

that

supported

do

not

They instead

his

testimony,

maintaining that his opinion regarding the meaning of terms and
phrases was simply “rank speculation.”

They aver that “almost

no topic of conversation was safe from Detective Underhill’s
leap to a connection with the drug world” and that “almost never
did

Detective

Underhill

explain

the

methodology

he

used

in

concluding that certain words [were] used as drug code rather
than because of their plain and ordinary meaning.”

We conclude

otherwise.
Before analyzing the intricacies of Underhill’s testimony,
we

reiterate

the

well-settled

principle

that

a

“trial

judge

[has] considerable leeway in deciding in a particular case how
to go about determining whether particular expert testimony is
reliable.”

Kumho

Tire

Co.

v.

Carmichael,
24

526

U.S.

137,

152

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(1999).
“test

Pg: 25 of 33

Moreover, this Court has previously advised that the

of

reliability

flexible.”
2007)

Filed: 04/03/2013

Federal

Rule

of

Evidence

702]

is

United States v. Wilson, 484 F.3d 267, 274 (4th Cir.

(quoting

example,

[in

Kumho

experiential

Tire

Co.,

expert

526

U.S.

testimony

at

is

141-42).

For

noticeably

less

“testable” than testimony based on pure science; nevertheless,
per Rule 702, experience can still form the basis for reliable
expert testimony.

Id.

Indeed, the advisory committee notes to

Rule 702 explicitly contemplate the use of experiential expert
testimony by law enforcement agents in a trial that involves
drug transactions:
[T]he principle used by the agent is that participants
in such transactions regularly use code words to
conceal the nature of their activities.
The method
used by the agent is the application of extensive
experience
to
analyze
the
meaning
of
the
conversations.
So long as the principles and methods
are reliable and applied reliably to the facts of the
case, this type of testimony should be admitted.
Fed.

R.

Evid.

702

advisory

committee’s

note.

Further,

this

Court has previously held that “law enforcement officers with
extensive drug experience are qualified to give expert testimony
on the meaning of drug-related code words.”

Wilson, 484 F.3d at

275.
Thomas and White are concerned about the explanation of
methodology
testimony.

(or

lack

thereof)

that

accompanied

Underhill’s

But our precedent does not require a law enforcement

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officer providing experiential expert testimony to painstakingly
explain

his

deciphering

methodology.

See

United

States

v.

Baptiste, 596 F.3d 214, 222-23 & n.6 (4th Cir. 2010) (holding
that a district court did not commit plain error in admitting
the

testimony

“specifically

of

a

drug

expert

mention[ed]

the

when

word

that

expert

‘methodology’

had

not

in

his

testimony” but had stated that he was experientially “familiar
with the street-level jargon associated with drug trafficking”
and that he decoded conversations by examining their context).
Thus, to the extent that the district court erred in finding
Underhill’s

methodology

sufficiently

reliable,

such

error

was

not plain.
Thomas

and

White

are

also

concerned

that

Underhill

interpreted phrases that were commonplace and not in need of
elucidation by an expert.

Again, we find that if the district

court erred, such error was not plain.
sake

of

argument

only,

that

the

court

Even assuming, for the
should

have

stricken

Underhill’s testimony regarding the phrase “I was holding that
for you,”

we cannot ascertain that the court’s failure to do so

violated Thomas’s and White’s substantial rights, especially in
light

of

the

two

instructions

weight of the testimony.

the

court

gave

regarding

the

Accordingly, we decline to reverse the

verdict on this ground.

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c.
Thomas

and

White

also

contend

that

when

Underhill

“seamlessly” testified both as an expert and fact witness, the
district court failed to adopt adequate safeguards to prevent
jury confusion.

Dual-role testimony is not per se prejudicial

to a defendant.

Baptise, 596 F.3d at 224.

However, when a

witness plays such a dual role, the district court must take
precautions to ensure that the jury does not become confused and
accord

undue

expert.

weight

to

fact

witness

testimony

given

Id. (quoting Wilson, 484 F.3d at 278 n.5).

precautions
separate

include

trips

to

(1)

having

the

stand

the
and

expert
(2)

a

make

lay

cautionary

and

expert

instruction

confusion

was

high.

identical

circumstance

was
This
in

testimony
issued;
Court

were
thus,

recently

Baptiste.

interwoven
the

risk

addressed

Although

it

two

cautionary

instruction to the jury regarding the witness’s dual role.
Here,

the

Appropriate

witness

issuing

by

Id.
and

of
a

no

jury

nearly

ultimately

declined to reverse the jury verdict in that case because it was
constrained

by

a

plain

error

standard

and

“the

facts

in

the . . . case placed it in a gray area of the law,” the court
issued a caution regarding the handling of dual-role testimony:
[W]e note that the district courts should take steps
to ensure that there is a clear demarcation in the
jury’s mind between a witness’s lay and expert roles.
This may be accomplished, for example, by cautionary
warnings or instructions, by requiring the witness to
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take separate trips to the stand in each capacity, or
by ensuring that counsel makes clear when he is
eliciting lay versus expert testimony.
Baptiste, 596 F.3d at 225 n.9.
Given our discussion of appropriate safeguards in Baptiste,
and the district court’s failure in this case to implement any
of those safeguards, we can readily say that the court erred in
not employing methods to help the jurors “understand that they
[could] not give [Underhill’s] lay testimony additional weight
simply because of his dual-role as an expert.”

Id.

We cannot

say that the district court’s error merits reversal, however.
Under the plain error standard, reversal requires an obvious
error that affects substantial rights.

Thomas and White have

failed to demonstrate how the district court’s error rises to
such a level.

In their brief, they claim that “[t]he errors

were numerous and the confusion widespread.”

However, they fail

to cite any specific examples of this “widespread” confusion.
Accordingly, we are once again constrained to uphold the jury’s
verdict.

II.
Thomas and White next contend that the district court erred
in declining to give a multiple conspiracies jury instruction.
A

multiple

“the

proof

conspiracies
at

trial

jury

instruction

demonstrates
28

that

is

[the]

appropriate

when

appellants

were

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involved only in separate conspiracies unrelated to the overall
conspiracy

charged

in

the

indictment.”

United

States

v.

Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (quoting United
States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994)) (internal
quotation marks omitted).
The government’s evidence supporting Thomas’s and White’s
conspiracy

charges

consisted

of

(1)

wiretap

evidence

showing

contact between Michael Moore 5 and Thomas and between Moore and
White

and

(2)

evidence

showing

that

Moore

and

Thomas

shared

customers—namely, Stokes, Leandre Preston, and Joseph Hensley,
all individuals who were apprehended with Thomas and White.
At the jury charge conference, Thomas and White requested a
multiple

conspiracies

jury

instruction,

government’s

evidence

proved

distribution

networks”

with

there

maintaining

were

individual

that

“essentially

buyers

and

that

the
two
the

government made “no connection between the distribution networks
and any of [the] individual buyers.”

The district court denied

Thomas and White’s request, and they contend that it erred in
doing so.
“We review [a] district court’s decision to give or refuse
to give a jury instruction for abuse of discretion.”

5

United

Michael Moore was charged with White and Thomas but is not
a party to this appeal.

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States v. Sarwari, 669 F.3d 401, 410–11 (4th Cir. 2012) (quoting
United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009))
(internal quotation marks omitted).

We will find refusal to

give an instruction erroneous only if the requested instruction
“(1)

was

correct,

(2)

was

not

substantially

covered

by

the

court’s charge to the jury, and (3) dealt with some point in the
trial

so

important

instruction

that

seriously

conduct his defense.”

the

failure

impaired

the

to

give

the

defendant’s

requested

ability

to

United States v. Green, 599 F.3d 360, 378

(4th Cir. 2010) (quoting Passaro, 577 F.3d at 221).

Here, we

conclude the district court properly denied Thomas and White’s
request for a multiple conspiracies jury instruction.
Thomas
requested

and

was

White

correct

maintain
because

that

“[t]he

the

instruction

government

they

presented

no

evidence that [they] had any relationship with each other, or
any acquaintances of alleged co-conspirators in common.”
admit

that

the

government

presented

evidence

that

They
Stokes

purchased her drugs from both Thomas and Moore and that White
purchased his drugs from Moore, but they aver that such evidence
is insufficient to show that White and Thomas were involved in
the same conspiracy.

We are unconvinced.

Thomas and White fail to accord sufficient weight to our
precedent regarding the proof necessary for a conspiracy.
conspiracy

need

not

“have
30

a

discrete,

A

identifiable

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organizational
1044,

1054

structure.”

(4th

Cir.

Pg: 31 of 33

United

1993).

States

Rather,

it

v.

Banks,

can

be

10

F.3d

simply

“a

loosely-knit association of members linked only by their mutual
interest in sustaining the overall enterprise of catering to the
ultimate demands of a particular drug consumption market.”

Id.

Moreover, “[o]nce it has been shown that a conspiracy exists,
the evidence need only establish a slight connection between the
defendant and the conspiracy to support conviction.”

United

States v. Burgos, 94 F.3d 849, 861 (4th Cir. 1996) (alteration
in original) (quoting United States v. Brooks, 957 F.2d 1138,
1147 (4th Cir. 1992)) (internal quotation marks omitted).
fact,

proof

of

a

conspiracy

does

not

even

defendant “know all of his coconspirators.”
case

here.

The

government

may

not

require
Id.

In

that

a

Such is the

have

outlined

the

organizational structure of Thomas and White’s conspiracy, but
it

presented

evidence

sufficient

to

show

that

they

were,

at

minimum, part of a “loosely-knit association of members” that
existed

for

the

purpose

of

drug

trafficking.

We

therefore

conclude that the district court did not act “arbitrarily or
irrationally”

in

declining

to

give

the

multiple

jury instruction that Thomas and White requested.

31

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III.
Finally, we address White’s contention that the government
presented

insufficient

conviction.

When

evidence

we

review

a

to

support

trial

to

his

conspiracy

determine

whether

sufficient evidence supported conviction on a certain charge, we
view the evidence through a lens that favors the government, and
we ask, “Could any reasonable juror have found the defendant
guilty of this charge beyond a reasonable doubt?”

See United

States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).
We have reviewed the evidence that the government presented
against White, and we are satisfied that it was sufficient for a
reasonable juror to find White guilty of conspiracy under 21
U.S.C. § 846.

White argues that the government “may have proved

that a drug trafficking conspiracy existed, [but] there was no
evidence

to

support

a

finding

that . . . White

voluntarily participated in that conspiracy.”
contends

that

the

government’s

knowingly

or

Further, White

circumstantial

evidence

of

White’s participation in the sale of drugs was insufficient to
prove his involvement in the conspiracy.

We are unpersuaded.

At trial, the government presented evidence showing that on
several occasions, White called Moore to purchase powder cocaine
and

crack

indicating

cocaine.
that

on

The
April

government
8,

2010,

also
after

presented
White

evidence

called

Moore

requesting cocaine, he met with Moore in a black Nissan and then
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exited the Nissan and entered a white Dodge.

After a “brief

time, approximately a minute or so,” White exited the Dodge and
re-entered the Nissan.
meeting,”

law

“[J]ust a couple of minutes after the

enforcement

discovered

crack

cocaine

government

also

presented

officers
in

stopped

the

driver’s

evidence

of

the

Dodge

possession.

several

and
The

other

brief

meetings between White and Moore.
We

recognize

that

such

evidence

may

seem

negligible.

Nonetheless, it is sufficient to support a conclusion that White
participated in a conspiracy with Thomas and Moore.
enough

evidence

conclusion

of

exists

guilt,

we

to

support

will

not

a

reasonable

second-guess

the

And when
juror’s
verdict.

Accordingly, we again decline to reverse White’s conviction.

IV.
We have reviewed the evidence provided to us in the record,
and we have considered each of Thomas’s and White’s allegations.
Because we ascertain no reversible error, we affirm the jury’s
verdict on all counts.
AFFIRMED

33