US v. Lateef Fisher

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00413-RDB-1 Copies to all parties and the district court/agency. [999943649].. [15-4471, 15-4550]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4471

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LATEEF FISHER,
Defendant - Appellant.

No. 15-4550

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LATEEF FISHER,
Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:14-cr-00413-RDB-1)

Submitted:

September 30, 2016

Decided:

October 7, 2016

Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and DAVIS,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Evan T. Shea, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lateef

Fisher

appeals

his

conviction

for

conspiracy

distribute and possess with intent to distribute heroin.

to
On

appeal, he contends that the district court erred in denying his
motion

to

permitting

suppress
an

evidence

agent

of

the

seized
Drug

from

a

Enforcement

storage

unit,

in

Agency

(DEA)

to

testify regarding drug trade codes, and in instructing the jury
regarding the elements of conspiracy and drug quantity.

Finding

no error, we affirm.
First, Fisher argues that the district court erroneously
denied his motion to suppress the cash and two guns seized from
the storage unit rented in the name of his girlfriend.
posits

that

there

was

an

insufficient

basis

to

find

He
that

evidence of criminal activity would be found in the storage unit
and, therefore, the warrant was invalid.

Fisher also challenges

the district court’s conclusion that, even if the warrant was
invalid, the good faith exception of United States v. Leon, 468
U.S. 897 (1984) applied. *
In

evaluating

the

denial

of

a

suppression

motion,

this

court “review[s] the district court’s factual findings for clear
error

and

its

legal

conclusions

*

de novo.”

United

States

v.

Because we conclude that the court did not err in
determining that the warrant was valid, the district court’s
alternate holding need not be addressed on appeal.

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Green, 740 F.3d 275, 277 (4th Cir. 2014); see United States v.
Span, 789 F.3d 320, 325 (4th Cir. 2015) (defining clear error).
The court “construe[s] the evidence in the light most favorable
to the government, as the prevailing party below.”
F.3d at 277.

Green, 740

We conclude that the evidence justly supported the

search warrant on the storage unit.
Fisher also challenges the district court’s qualification
of

DEA

Agent

Edwards

as

an

expert

in

drug

specifically the reliability of his methodology.

trade

code,

Pursuant

to

Rule 702,
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if: (a) the
expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data;
(c) the
testimony
is
the
product
of
reliable
principles and methods; and (d) the expert has
reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.

We review the district court’s decision to

admit expert testimony under Rule 702 for abuse of discretion.
United

States

v.

Wilson,

484

F.3d

267,

273

(4th

Cir.

2007)

(citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152
(1999)).

The

leeway

deciding

in

determining

district

whether

in

court
a

particular

particular

Wilson, 484 F.3d at 273.

must

expert

be

granted

case

how

testimony

“considerable
to
is

go

about

reliable.”

If an expert seeks to be qualified on
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the basis of experience, the district court must require that he
“explain how his experience leads to the conclusion reached, why
his experience is a sufficient basis for the opinion, and how
his experience is reliably applied to the facts.”

Id. at 274

(internal quotation marks and citation omitted).
In

order

to

determine

the

reliability

of

an

expert’s

methods, a district court should consider testing, peer review,
error

rates,

community.

and

acceptability

in

the

relevant

scientific

See Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 593-94 (1993).

However, as the Court stated in

Daubert, the test of reliability is “flexible,” and Daubert’s
list

of

specific

factors

neither

necessarily

applies to all experts or in every case.
U.S. at 141.

nor

exclusively

Kumho Tire Co., 526

In applying these principles, “the measure of

intellectual rigor will vary by the field of expertise and the
way

of

demonstrating

expertise

will

also

vary.”

“[G]enuine

expertise may be based on experience or training.”

Tyus v.

Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996).
Advisory

Committee

notes

to

Rule

702

specifically

note

The
that

“[i]n certain fields, experience is the predominant, if not the
sole,

basis

for

a

great

deal

of

reliable

expert

Fed. R. Evid. 702, 2000 advisory committee note.
met

the

requirements

for

testifying

to

the

testimony.”

Agent Edwards

meaning

of

coded

language recorded from Fisher’s calls and texts, and adequately
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explained

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his

methodology.

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The

court

carefully

Edwards on his methodology and how it was applied.
there

was

no

abuse

of

discretion

in

the

questioned
Accordingly,

district

court’s

determination to accept Agent Edwards as a decoding expert.
United

States

v.

Garcia,

752

F.3d

382,

391

(4th

Cir.

See
2014)

(approving methodology that identifies drug code by listening to
context of the intercepted call and identifying language that
does not otherwise make sense).
Finally, Fisher argues that the district court misstated
the law when it instructed the jury that drug quantity is not an
element of the offense in a curative instruction on conspiracy
and drug quantity elements.

“We review the district court’s

jury instructions in their entirety and as part of the whole
trial,

and

focus

on

whether

the

district

court

adequately

instructed the jury regarding the elements of the offense and
the defendant’s defenses.”
467,

469

acknowledges

(4th
that

United States v. Wilson, 198 F.3d

Cir.

1999)

his

(citation

failure

omitted).

to

to

object

the

Fisher
instruction

subjects this issue to plain error review.

United States v.

Robinson, 627 F.3d 941, 953 (4th Cir. 2010).

To establish plain

error, Fisher must show: (1) there was an error, (2) that was
plain, and (3) that affected his substantial rights.
States v. Olano, 507 U.S. 725, 732, 735-36 (1993).

United

Further, we

will exercise our discretion and reverse a conviction based on a
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plain

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error

fairness,

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only

where

integrity

proceedings.”

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the

or

error

public

“seriously
reputation

affects
of

the

judicial

Id. at 732, 736 (brackets and internal quotation

marks omitted).
“The purpose of jury instructions is to instruct the jury
clearly regarding the law to be applied in the case.”
States

v.

reviewed

Lewis,
these

53

F.3d

29,

instructions

34

in

(4th

the

Cir.

context

1995).
of

United
We

the

have

overall

charge, and conclude that they fairly and accurately set forth
the controlling law.

United States v. Woods, 710 F.3d 195, 207

(4th Cir. 2013) (this court considers the jury charge as a whole
to

determine

whether

statutory elements).

the

instructions

accurately

stated

the

Fisher has not demonstrated that in the

context of the overall charge, the challenged instructions did
not

accurately

set

forth

the

applicable

law.

Therefore,

no

plain error resulted.
Accordingly, we affirm the judgment.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

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