United States v. Courtney Davis Wilson , 634 F. App'x 718 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14449
________________________
D.C. Docket No. 3:11-cr-0008-WKW-CSC-2
UNITED STATES OF AMERICA,
p Plaintiff-Appellee,
versus
COURTNEY DAVIS WILSON,
a.k.a. Co Co,
RECO MAREESE DANIELS,
DAMIEN MICHAEL PIERCE,
a.k.a. Mike,
Defendant-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Alabama
________________________
(December 16, 2015)
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Before WILLIAM PRYOR, Circuit Judge, and WOOD, * Chief District Judge. **
PER CURIAM:
Defendant-Appellants Courtney Wilson, Reco Daniels, and Damien Pierce
(collectively, the “Appellants”) were convicted of various offenses following a
joint jury trial in the Middle District of Alabama. While the Appellants challenge
their convictions and sentences on several grounds, we find only two issues worthy
of discussion: (1) whether the district court erred in implementing enhanced
security measures at trial; and (2) whether the district court erred in admitting the
testimony of a gang expert from California. 1 After thorough review, we agree with
the district court and thus affirm.
*
Honorable Lisa Godbey Wood, Chief United States District Judge for the Southern
District of Georgia, sitting by designation.
**
Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sat by designation as a member of the panel at oral argument, but is now deceased. We
therefore decide this case as a quorum. 28 U.S.C. § 46(d).
1
Wilson raises the following issues on appeal: (1) whether the district court erred in denying
Wilson’s Motion in Limine to exclude evidence under Federal Rule of Evidence 404(b) or, in the
alternative, failing to sever the trial; (2) whether the district court erred in allowing a gang expert
from California to testify; (3) whether the district court erred in ordering enhanced security
measures at trial; (4) whether the district court erred in granting the prosecution’s Batson
challenge during jury selection, Batson v. Kentucky, 476 U.S. 79, 79, 106 S. Ct. 1712, 1712, 90
L. Ed. 2d 69 (1986); (5) whether the district court erred in enhancing Wilson’s sentence; and (6)
whether the application of 18 U.S.C. § 922(g) was appropriate in this case. Daniels’ appeal
presents the following: (1) whether the district court erred in failing to sever the trials of the
defendants; (2) whether the district court erred in allowing a gang expert from California to
testify; (3) whether the sentence imposed upon Daniels was greater than necessary, in violation
of 18 U.S.C. § 3553(a); and (4) whether the district court erred in applying a four-level
enhancement for abduction. Finally, Pierce raises these issues: (1) whether the district court
erred in denying the defense Motion for a New Trial; (2) whether the district court erred in
denying the Motion for Judgment of Acquittal; (3) whether the district court erred in applying a
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I. BACKGROUND
From July to October 2009, the Appellants committed a series of violent
crimes throughout the Middle District of Alabama. Specifically, on July 30, 2009,
Wilson, Daniels, and two other individuals named Anthony Tallie and Valerie
Long followed a vehicle to an apartment complex, attacked the owner of the
vehicle—striking him with a firearm and causing serious bodily injury, seized the
keys to the vehicle, and unsuccessfully attempted to steal the vehicle before fleeing
the scene. On August 1, 2009, the three Appellants went to a house, knocked on
the front door, and, when the man living in the home opened the door, proceeded
into the residence carrying firearms. The Appellants beat the man, ordered his
family members to lie on the floor, searched the house, and, ultimately, forced the
man into the trunk of the family’s vehicle and drove the vehicle off of the property.
Finally, on October 23, 2009, Wilson and another individual named Willie Tallie
robbed a convenience store clerk at gunpoint and, after leaving the premises, were
picked up by a vehicle driven by Daniels.
A federal grand jury in the Middle District of Alabama returned an eight-
count second superseding indictment on August 31, 2011, which charged the
Appellants—as well as codefendants Anthony Tallie and Willie Tallie, who
four-level enhancement for abduction; and (4) whether the district court erred in considering
representations made in the presentence report.
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subsequently pled guilty—with various offenses relating to their involvement in
the foregoing events.2 The second superseding indictment also alleged that the
Appellants were members of, or associated with, the “Cedar Block Piru” set of the
“Bloods” street gang in Montgomery, Alabama.
A. Security Measures
The district court held a pretrial status conference with counsel for all parties
on March 15, 2012, at which time the prosecution raised a number of concerns
about the level of security at trial. Specifically, the prosecutor informed the court
that one of the Appellants had allegedly made a threat toward him and another
prosecutor, but that the threat appeared to be fabricated. The prosecutor also
indicated that Daniels had written a threatening letter to the family of Valerie
Long, the Appellants’ unindicted cooperator who had agreed to testify for the
prosecution, and that Wilson and Daniels had verbally threatened Anthony Tallie,
2
Wilson and Daniels were indicted on the following charges: conspiracy and aiding and
abetting possession of firearms in furtherance of crimes of violence, in violation of
18 U.S.C. §§ 924(o), 2 (Count One); aiding and abetting attempted carjacking, in violation of
18 U.S.C. §§ 2119, 2 (Count Two); aiding and abetting the brandishing of a firearm in
furtherance of a crime of violence (the carjacking in Count Two), in violation of
18 U.S.C. §§ 924(a)(1)(A), 2 (Count Three); aiding and abetting carjacking, in violation of
18 U.S.C. §§ 2119, 2 (Count Four); aiding and abetting the brandishing and discharging of a
firearm in furtherance of a crime of violence (the carjacking in Count Four), in violation of
18 U.S.C. §§ 924(c)(1)(A)(ii)–(iii), (c)(1)(C)(i), 2 (Count Five); aiding and abetting the
interference with commerce by threats or violence, in violation of 18 U.S.C. §§ 1951(a), 2
(Count Six); and aiding and abetting the brandishing of a firearm in furtherance of a crime of
violence (the robbery in Count Six), in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), (c)(1)(C)(i), 2
(Count Seven). Pierce was charged with Counts One, Four, and Five. Wilson was also indicted
for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count Eight),
but this charge was dismissed before trial.
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another potential cooperating witness. Further, the prosecutor expressed concerns
regarding the audience at trial and the ability to control the atmosphere in and
around courtroom, based on the fact that the Appellants’ family members would be
present at trial while the prosecution’s witnesses—particularly the victims and the
Appellants’ cooperators—would be testifying against the Appellants. On the basis
of this information, the court instructed the prosecution to continue to
communicate with the U.S. Marshals Service and the court regarding these security
matters, and to follow up with court staff concerning a request for specifically
identified witness rooms.
At another status conference on March 27, 2012, the district judge notified
counsel that he had met with the U.S. Marshals on multiple occasions to discuss “a
lot of security issues and other types of issues surrounding this case.” The judge
referenced, in particular, his concern over the presence of the Appellants’ family
members at trial, alongside family members of the witnesses who would be
testifying against the Appellants.
Accordingly, the judge announced that he intended to enter an order
providing for additional security measures at trial, and described the general
content of that order. For example, the district judge stated that the Appellants
would wear shackles on their legs for the duration of trial, but that certain
precautionary measures would be in place:
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We’re also going to have skirts on the table so that the leg chains --
and the leg chains are going to be taped so they don’t rattle. And so
we’re going to keep that as much as possible from the jury. The
defendants will be in leg chains only. And . . . the [court security
officers] and the [M]arshals know to move -- only move the jury in
when the defendants are seated at counsel table behind the skirts.
The judge also indicated that the Appellants would wear electronic devices, or
tasers, on their legs and potentially on their arms, which would “need to be under
clothing so they[ ] [would] not [be] seen.” Additionally, the judge stated that
“[t]he first row of the seating in the gallery [would] . . . be reserved for law
enforcement.” Finally, there would be an additional metal detector, or some other
form of screening, outside the door through which the trial participants and
spectators would be entering the courtroom. 3
Wilson’s counsel voiced concern about the effect of these security measures
on his client’s right to a fair trial, and, at the judge’s direction, filed a Motion in
Limine on March 29, 2012, addressing this issue and making an additional
argument regarding due process rights. Nevertheless, the district court entered its
order on security measures later that day, which largely echoed the judge’s
statements made on the record at the status conference. One notable addition to the
3
The district judge also mentioned other security measures, none of which form the basis of
this appeal, including the following: all trial participants and spectators would enter and exit the
courthouse complex through one annex entrance; certain articles of clothing and accessories
would be prohibited; any person unable to enter the courtroom once it reached capacity would
need to leave the courthouse complex, rather than loiter in or around the courthouse; spectators
would not be able to enter or exit the courtroom after the proceedings commenced, except during
official breaks; and the court would empanel an anonymous jury.
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judge’s instructions, however, clarified that “[a]ll counsel tables [would] be
skirted,” not just the defense table. 4
Prior to jury selection on the morning of March 30, 2012, Wilson’s counsel
called the court’s attention to the pending Motion in Limine. At that time, counsel
for Daniels and Pierce, on behalf of their clients, joined in the objections raised in
Wilson’s Motion in Limine. The court noted these motions and offered counsel an
opportunity to voice any further opposition to the security measures before the jury
entered.
4
The March 29, 2012, order states:
1. All trial participants (except United States Attorney staff) and spectators will
only enter and exit the courthouse complex through the Annex entrance on
Church Street.
2. Appropriate clothing will be required to preserve decorum and enhance
security. Baseball and other hats, headbands, and any article of clothing or
accessory indicative of possible gang affiliation are prohibited. Buttons, signs
or other articles disruptive to the proceedings are also prohibited.
3. The first row of seating in the gallery of the courtroom is reserved for law
enforcement only.
4. The second row of seating on the government side of the gallery is reserved
for the media.
5. Once the courtroom gallery has filled to capacity, those persons unable to
enter must leave the courthouse. There will be no loitering in or around the
courthouse complex.
6. Spectators will not be allowed to enter or exit the courtroom once the
proceedings have begun except during official breaks or with the consent of
security personnel.
7. Any spectator attempting to communicate with or intimidate any trial
participant or juror will be immediately removed by the United States
Marshal. The spectator may be subject to contempt of court or criminal
charges for any attempt to communicate with or intimidate any trial
participant or juror.
8. All counsel tables will be skirted. No Defendant will be moved in or out of
the courtroom while the jury is present. Shackle chains are to be taped for
sound proofing.
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Ultimately, however, the judge determined that the security measures would
remain in place, stating, “[F]or security reasons that you-all are not aware of, we
are going to leave the security measures that I’ve ordered in place. There’s a good
reason for them.” Rather than detail his reasoning at that time, the judge advised
counsel, “we’re going to take that up after we strike the jury today. . . . I’m going
to put on the record, insofar as I can, what those matters are.”
The district judge assured counsel that the court had taken their concerns
into account and had “taken up every reasonable precaution.” Specifically, the
judge reminded counsel that additional safeguards were in place, such as the
skirting of the tables, taping of the leg chains, and moving of the Appellants
outside the presence of the jury. Additionally, the judge noted, “All security
[officers] in the room [are] nonuniformed. All security [officers] are in business
suits, including the marshals and [court security officers].” The judge further
remarked, before moving forward to jury selection, “The jurors are not going to be
put through metal detectors. . . . If you’re worried about jurors, they don’t know
anything about extra metal detectors. For all they know, this is how we normally
do business around here.”
Following the jury-selection proceeding, the court returned to the trial-
security discussion in a separate proceeding held before the start of trial on April 2,
2012. The transcript of this proceeding remains under seal. The docket, however,
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reflects that the district judge orally denied the Appellants’ motions in limine, and,
therefore, the court employed the prescribed security measures at trial.
B. Witnesses
The prosecution’s witness list included the Appellants’ codefendants,
Anthony Tallie and Willie Tallie, who had pled guilty and agreed to testify against
them. The witnesses testified that they were cousins, and that Daniels was also
their cousin, while Wilson was a longtime friend. Anthony Tallie also gave an
account of his participation in the July 30, 2009, attempted carjacking along with
Wilson, Daniels, and Valerie Long. Willie Tallie described his involvement in
robbing the convenience store with Wilson and being picked up by Daniels on
October 23, 2009.
More importantly, Anthony Tallie stated that Wilson, Daniels, Willie Tallie,
and Valerie Long were members of the Blood street gang. While Anthony Tallie
maintained that he was never “beat in” (or given full membership) to the gang, he
admitted that he had tried to fit in with the gang when he was younger by wearing
a red shirt and red hat. When asked how he knew that Daniels, in particular, was a
Blood, he said that Daniels wore red, carried a gun, and used Blood slang—
including substituting “B” for “C,” such as “bountry” instead of “country”—
particularly in conversations with Wilson. According to Anthony Tallie, Daniels
had attained the status of “triple OG” in the gang, and Wilson the status of “OG” or
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“double OG,” based on their time in the gang and having “put in work” for the
gang. Such terms were further defined by Willie Tallie.
Willie Tallie confirmed, upon taking the stand, that he was a member of the
Cedar Block set of the Blood gang, along with Wilson and Daniels. He recalled
that he was beat in to the gang by Wilson, who had already been a member, on
Collinwood street. Willie Tallie noted, however, that in Blood lingo,
“Collinwood” was pronounced “Bollinwood”—replacing the “C” with a “B,” or
otherwise placing an “X” through the “C,” so as to avoid using the letter of the
Bloods’ rival gang, the Crips.
Additionally, Willie Tallie explained that upon joining the Bloods, new
members were taught “knowledge” of the gang by their “OG,” including the
gang’s signs, the importance of certain items and the color red, and the gang’s
origins in California before spreading to other locations such as Montgomery,
Alabama. He stated that “knowledge” also included terminology, such as the word
“Piru” and the practice of replacing “C” with “B,” and hand signs. New members
also learned the ranks within the gang: “OG,” or “original gangster”—the rank
held by Wilson and Daniels, according to Willie Tallie—as well as “BG” and
“YG.” 5 Willie Tallie explained that gang members could move up the ranks by
putting in work, or, in other words, going on missions, such as a shooting mission,
5
Willie Tallie indicated that he was uncertain as to what “BG” and “YG” signified.
10
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breaking-and-entering mission, or fighting mission. He further testified that he had
used the term “Piru” and other gang terminology in conversations with Wilson and
Daniels, and that the three had worn red to signify the Bloods, used hand signs,
carried firearms every day, and engaged in criminal activity together.
Other witnesses for the prosecution included three victims of the home
invasion on August 1, 2009. Particularly relevant here is that in describing the
events that transpired on that evening, the man who lived in the home remarked
that one of the perpetrators was wearing a red hat displaying the iconic “P” of the
Philadelphia Phillies professional baseball team, another was wearing tennis shoes
with red laces, and at least two were carrying firearms. The man’s two family
members also testified to having heard the perpetrators shout the word “Piru”
repeatedly, and one confirmed that one of the perpetrators had worn a red hat.
C. Gang Experts
Prior to trial, the prosecution gave notice to the Appellants that it intended to
offer the expert testimony of Detective Wayne Joseph Caffey (“Detective Caffey”)
of the Los Angeles Police Department (the “LAPD”) in Los Angeles, California.
The prosecution informed the Appellants that Detective Caffey was prepared to
testify regarding the Appellants’ affiliation with the Blood street gang.
Wilson timely filed a Motion to Limine seeking to exclude Detective
Caffey’s testimony as unreliable and improper under Federal Rules of Evidence
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702 and 704, as well as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Pierce and Daniels subsequently
moved in limine, adopting Wilson’s arguments and further objecting to this
testimony as unfairly prejudicial, misleading, and confusing under Federal Rule of
Evidence 403. In opposition to these motions, the prosecution filed a Response
emphasizing Detective Caffey’s extensive experience working with gangs, and that
his testimony would serve a critical role in explaining the other evidence of the
Appellants’ gang affiliation at trial.
The district court noted the Appellants’ motions, and their request for a
Daubert hearing on the matter, at the March 15, 2012, status conference. Upon the
court’s inquiry, the prosecutor briefly set forth Detective Caffey’s background,
including that he had over thirty years of experience with the LAPD working
directly with gang members. The prosecutor described the general nature of the
expert’s testimony as follows:
One thing in particular that he will talk about is that the Bloods street
gang began in Compton, California. One of the original sets was
called Piru, based off the name of Piru Street in Compton, California.
Over time, the Bloods street gang has sort of been exported to all parts
of the country, okay; and gang members throughout other parts of the
country have adopted many of these -- obviously, the colors, the lingo,
and that sort of thing.
As to his opinion of the specific facts of this case, the prosecutor represented
that Detective Caffey’s statement would be limited to whether, “based on the
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evidence [he had] reviewed in this case”—including the testimonies of the victims
of the home invasion—he believed that the Appellants had “exhibit[ed] conduct
consistent with Blood gang members or membership in the Bloods street gang.”
The prosecutor assured the court that he “[did not] plan to have him say these three
individuals were Bloods.”6
Based on these representations, the district court found no reason to hold a
pretrial Daubert hearing regarding Detective Caffey’s testimony, but expressly left
open the possibility of an intratrial hearing on the matter. Nevertheless, the district
judge later informed counsel at the jury-selection proceeding that he planned to
allow expert gang testimony from both sides, and, accordingly, orally denied the
Appellants’ motions in limine regarding Detective Caffey’s testimony before the
start of trial on April 2, 2012. In doing so, however, the judge chose to reserve
ruling on the scope of the testimony until it was presented at trial.
The Appellants renewed their objections to Detective Caffey’s testimony at
trial, citing their previously stated grounds. The district judge overruled these
objections, allowing Detective Caffey to take the stand.
Detective Caffey testified at great length regarding not only his experience
with California gangs but also his gang-related experience in other parts of the
6
The prosecution provided the court with a copy of a “lengthy letter” originally sent to
defense counsel, which laid out the expert disclosure for Detective Caffey and the nature and
scope of the matters about which he would testify.
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country. At the time of trial, Detective Caffey had over thirty years’ experience as
a member of the LAPD. He had completed four different assignments with a unit
of the LAPD specifically dedicated to street-gang activity, though he testified that
most of his assignments with other units—such as homicide or narcotics—had
involved gang members.7 Through these assignments, Detective Caffey had
frequent contact with gang members and interviewed them on several occasions—
both on the street and at the jail, and some for identification purposes.
Detective Caffey further stated that he had worked with the gang intel and
surveillance unit of the LAPD for fourteen years. During that time, Detective
Caffey worked with the California prison system to identify and interview gang
members for intelligence, crime-solving, or other purposes. Detective Caffey
maintained that, between the streets and the jails, he had interviewed
approximately four thousand gang members, about thirty percent of whom were
members of the Blood gang.
In addition to his assignments, Detective Caffey testified that he had
received specialized training on street gangs from the LAPD. He also had directed
an in-service class for the LAPD on African-American street and prison gangs for
over twenty years, and taught an interview class for advanced investigators for the
State of California. Detective Caffey further testified that he had been a member
7
Detective Caffey estimated that he had investigated over two hundred gang-related
homicides in his career.
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of the California Gang Investigators Association for over twenty years, which
provided unique opportunities to network with other gang officers both in
California and nationwide.
Detective Caffey explained that the Los Angeles gang culture had spread all
over the country, and, consequently, he was periodically asked to attend national
gang conferences to instruct governmental and civilian audiences on the subject of
gang history and practices.8 He also stated that he had provided gang training to
federal law enforcement officers, federal judges, teachers, social workers, and
church groups, among others. At one training course in Florida in particular,
Detective Caffey had the opportunity to speak with several members of the east-
coast Bloods and Crips, who shared with him information about their gangs and
their experiences. Detective Caffey estimated that he provided training or taught
courses on gangs about ten to fifteen times per year and had trained well over
twenty thousand people on gang activity.
Among Detective Caffey’s other accomplishments were the following:
writing an article on the history of the Blood and Crip gangs, which was published
in a number of periodicals; consulting with television programs and news agencies
in the Los Angeles area; and participating in a National Geographic segment on
the history of the Bloods and Crips. He also testified as a gang expert in California
8
Detective Caffey specified that he had attended gang conferences in Florida, Maryland,
Illinois, Arizona, and New Mexico, among several other states.
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state court over two hundred times, and in three federal cases in Nashville,
Tennessee.
After discussing his qualifications, Detective Caffey detailed the origin,
traditions, and growth of the Blood gang. He stated that the Blood gang was
comprised of many subsets, including the “Cedar Block Piru” set, named after the
streets or areas of Compton, California, where the gang originated. The Blood
gang eventually spread to other parts of California and the country, retaining, all
the while, several of the traditions of the original Blood gang. According to
Detective Caffey, these traditions were indicators of membership in the Blood
gang, and included wearing the color red, clothing displaying the letters “B” for
“Blood” or “P” for “Piru,” clothing of sports teams with these letters (such as the
Boston Red Sox, Chicago Bulls, and Philadelphia Phillies), and a red bandana. He
also related that Blood gang members uniformly viewed Crip gang members as
enemies.
Other traditional indicators of Blood gang membership, according to
Detective Caffey, were the use of certain terminology, such as “Piru” (understood
as being synonymous with “Blood”) and “damu” (Swahili for “Blood”). Blood
gang members also replaced the letter “C” with a “B” when speaking with other
Bloods (such as “Bompton” rather than “Compton”); crossed out, flipped upside
down, or flipped backward the letter “C” when written; and made certain hand
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signs displaying the letter “B” or “P.” Detective Caffey further testified that Blood
gangs nationwide generally committed violent crimes and carried firearms.
Notwithstanding these similarities, Detective Caffey identified some
distinctions between the west-coast and east-coast Bloods. For example, he
explained that individuals joining the Blood gang typically were grandfathered in
or recruited, but that the recruitment techniques differed, depending on location,
from being “jumped in” (or taking “a beat[ ] down”) to “putting in work” (or
carrying out missions, often violent, to earn respect). Detective Caffey also
indicated that while Blood gangs nationwide used the designation “OG,” or
“original gangster,” the methods of achieving this status, as well as the level of
prestige afforded to it, varied from coast to coast. In addition to “OG,” east-coast
Bloods recognized other titles—“double OG,” “triple OG,” “YG” (“young
gangster”), and “BG” (“baby gangster”)—forming a rank structure that was not
characteristic of the original west-coast Blood gang. Finally, Detective Caffey
stated that he had encountered east-coast Blood gang members with certain tattoos
that were not common among Bloods on the west coast, and had observed east-
coast Bloods using numbers to communicate in a code-like fashion not shared by
their west-coast counterparts.
When asked about his familiarity with the Appellants’ case, Detective
Caffey shared that he had reviewed some recordings, reports, transcripts of
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recordings, and photographs of the Appellants. Detective Caffey commented on
those photographs, which the prosecution had entered into evidence, including his
interpretations of certain of the Appellants’ tattoos and his observations of their red
clothing, hats embroidered with the letter “B,” and hand signs. 9 Additionally, he
offered his opinion on recordings and transcripts of recordings entered into
evidence by the prosecution, which captured certain of the Appellants’ telephone
conversations while incarcerated. Detective Caffey noted, in part, that the speakers
consistently replaced “C” with “B”; used numbers to communicate; repeated
“damu” and “Piru” multiple times; self-identified as an “OG”; spoke negatively
about Crips; and, on one occasion, described an area of Compton that was Cedar
Block Piru territory. 10
Detective Caffey also commented on the statements of one of the home
invasion victims, the transcript and audio of which he had reviewed prior to taking
the stand. He found certain facts relayed by the victim to be particularly
noteworthy: that the perpetrators wore red hats, one of which displayed the iconic
“P” of the Philadelphia Phillies; that they repeatedly shouted the word “Piru”; and
9
For instance, in one photograph featuring Daniels, Detective Caffey opined that his tattoo
“CBP” meant “Cedar Block Piru,” and observed that the “C” was crossed out. Detective Caffey
also remarked that the inscription “Bollinwood” underneath “CBP” appeared to refer to the
specific Blood area in this case, which he understood to be “Collinwood,” with the “C”
characteristically changed to a “B.”
10
In particular, the speakers said, “bity,” “brazy,” and “Bhristmas,” instead of “city,”
“crazy,” and “Christmas,” respectively.
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that these things occurred while the Appellants were in a house committing a
crime. The prosecutor’s inquiry into Detective Caffey’s opinion of these facts
proceeded as follows:
Q. If you didn’t know anything about the facts of this case and
with no knowledge of who actually committed that particular crime, if
you reviewed those statements from that victim, what would be your
perception of that incident?
A. As an investigator, the first thing I would be looking for were
Blood gang members.
Q. And would being in a house while committing a crime,
shouting the term “Piru” -- is that conduct that’s consistent with what
you’ve seen in your experience among Blood gang members?
A. Yes.
Q. And if an individual is wearing a Phillies hat in that house, is
that significant to you?
A. Yes.
Detective Caffey further stated that it would have been unusual for Blood gang
members to bring a nonmember of the gang with them to commit a crime such as
the home invasion robbery. Notwithstanding these statements, Detective Caffey
represented on cross-examination that he had no personal knowledge as to whether
any one of the Appellants was, in fact, a member of a gang.
Later in the trial, Pierce called his own gang expert, Lisa Taylor-Austin
(“Taylor-Austin”), to testify. Taylor-Austin stated that she held a counseling
degree and had experience counseling approximately two thousand gang members
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throughout California, New York, and Connecticut. She also indicated that she
had consulted with two collegiate institutions, a television show, the New York
Police Department gang unit, and a U.S. Marshals office in Louisiana regarding
gang activity. Further, Taylor-Austin reported that she had completed training or
taught courses on gangs in California and the northeast, and served as a gang
expert in Arizona, Kansas, Kentucky, and South Carolina.
Consistent with Detective Caffey’s testimony, Taylor-Austin described gang
identifiers as including clothing in one primary color; symbols on clothing; tattoos;
hand signs; specific terminology, such as numeric codes and, in the case of Bloods,
the word “Piru”; and the commission of crimes. Taylor-Austin, like Detective
Caffey, stated that her knowledge of the Appellants’ case was limited to what she
had heard in court, and her review of some of the relevant transcripts and other
statements in the case. On this evidence, Taylor-Austin concluded that the
evidence seemed to support the existence of a hybrid gang, given the mixed
references to “Cedar Block Piru,” “Bollinwood,” and other names. 11
D. Verdict and Sentencing
11
Taylor-Austin’s testimony was slightly inconsistent with that of Detective Caffey in some
other respects—none of which is of any consequence here—such as her statement that the east-
coast designations of “double OG” and the like were prevalent but did not function as a rank
structure, and her interpretations of the hand signs in the photographs as representing a gang, but
not the Blood gang.
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On April 6, 2012, the jury returned verdicts finding the Appellants guilty on
all charged counts. The district court sentenced Wilson to a term of 894 months in
prison, Daniels to a term of 1,044 months in prison, and Pierce to a term of 288
months in prison. Additionally, the court sentenced each Appellant to five years of
supervised release following the term of imprisonment, as well as a special
assessment. Wilson, Daniels, and Pierce timely filed their respective notices of
appeal on August 27, 2012, September 5, 2012, and October 1, 2012.
II. LEGAL STANDARDS
The first issue we address is whether the district court erred in ordering the
use of enhanced security measures at trial. We review for abuse of discretion a
district court’s decision regarding the security measures that will be in place at
trial. United States v. Baker, 432 F.3d 1189, 1245 (11th Cir. 2005); United States
v. Durham, 287 F.3d 1297, 1304 (11th Cir. 2002). District judges are ultimately
responsible for “ensuring the safe, reasonable and orderly progress of trial.”
Durham, 287 F.3d at 1303 (internal quotation marks omitted) (quoting United
States v. Theriault, 531 F.2d 281, 284 (5th Cir. 1976)).12 Accordingly, a district
judge must be afforded reasonable discretion to balance the interests involved and
to determine the measures necessary to guarantee the security of the courtroom.
12
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as precedent all of the former Fifth Circuit decisions prior to September 30, 1981.
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Id. (citing Theriault, 531 F.2d at 284); United States v. Mayes, 158 F.3d 1215,
1219 (11th Cir. 1998).
The second issue that merits discussion is whether the district court erred in
allowing the prosecution’s gang expert to testify at trial. We review a district
court’s evidentiary rulings, including those regarding the admissibility of expert
testimony and reliability of expert opinion, for an abuse of discretion. United
States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011) (citing United States v.
Bradley, 644 F.3d 1213, 1270 (11th Cir. 2011)); United States v. Frazier, 387 F.3d
1244, 1258 (11th Cir. 2004) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–
43, 118 S. Ct. 512, 517, 139 L. Ed. 2d 508 (1997)). Indeed, a district court enjoys
“considerable leeway” in making decisions of this type, as it is in the best position
to evaluate documentary evidence and is able to observe witnesses and jurors first
hand. United States v. Brown, 415 F.3d 1257, 1265–66 (11th Cir. 2005) (citing
United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir.2003)) (“We recognize a
significant range of choice for the district court on evidentiary issues, which is to
say we defer to its decisions to a considerable extent.” (citing McCorvey v. Baxter
Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002))).
When applying the abuse-of-discretion standard, we must affirm unless we
find that the district court has applied the wrong legal standard, followed the wrong
procedure, relied on clearly erroneous facts, or committed a clear error of
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judgment. See Baker, 432 F.3d at 1245 (citing Frazier, 387 F.3d at 1259) (security
measures); Brown, 415 F.3d at 1266 (citing McClain v. Metabolife Int’l Inc., 401
F.3d 1233, 1238 (11th Cir. 2005); and Frazier, 387 F.3d at 1259) (expert
testimony).
III. DISCUSSION
A. Security Measures
Wilson argues that the district court erred in issuing an order directing the
use of additional security measures at trial. Specifically, the Appellant maintains
that the following security measures interfered with his constitutional rights to a
fair trial and to due process of law: (1) the requirement that the Appellants wear
shackles and tasers for the duration of trial; (2) the presence of additional U.S.
Marshals and court security officers in the courtroom, for whom the court reserved
the first row of the gallery; and (3) the placement of an additional metal detector
outside the courtroom door. According to Wilson, he suffered actual prejudice as a
result of these measures, in that “the jury was predisposed to find him guilty
because of the intense security that was presen[t].” Wilson further contends that
these measures posed an inherent risk of prejudice based on “the unacceptable risk
of the tightened security coming into play.”
While a district court retains reasonable discretion to determine which
security measures are necessary in a given case, this discretion is necessarily
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limited by a criminal defendant’s constitutional rights to a fair trial and due process
of law. See Durham, 287 F.3d at 1304–06 (citing Theriault, 531 F.2d at 284).
Among the fair-trial and due-process interests often implicated by security
measures are the presumption of innocence until proven guilty, the right to secure a
meaningful defense, the right to be present at trial and participate in one’s defense,
and “the need to maintain a judicial process that is not an affront to the dignity and
decorum of the proceeding itself.” See id. (citing Estelle v. Williams, 425 U.S.
501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), and Zygadlo v. Wainwright, 720
F.2d 1221, 1223 (11th Cir. 1983)); see also Baker, 432 F.3d at 1244 (citing Deck v.
Missouri, 544 U.S. 622, 630–31, 125 S. Ct. 2007, 2013, 161 L. Ed. 2d 953 (2005),
and Mayes, 158 F.3d at 1225). Integral to the presumption of innocence, a
criminal defendant must be tried by an impartial, indifferent jury, Woods v.
Duggar, 923 F.2d 1454, 1456 (11th Cir. 1991), and his guilt or innocence must be
decided solely on the basis of evidence developed at trial, rather than “other
circumstances not adduced as proof at trial,” Holbrook v. Flynn, 475 U.S. 560,
567, 106 S. Ct. 1340, 1345, 89 L. Ed. 2d 525 (1986) (quoting Taylor v. Kentucky,
436 U.S. 478, 485, 98 S. Ct. 1930, 1934, 56 L. Ed. 2d 468 (1978)).
To safeguard these rights, a district court must be alert to factors that may
undermine the fair trial process. Estelle, 425 U.S. at 503, 96 S. Ct. at 1693;
Woods, 923 F.2d at 1456. Specifically, a court “must guard against ‘the
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atmosphere in and around the courtroom [becoming] so hostile as to interfere with
the trial process.’” Woods, 923 F.2d at 1456 (alteration in original) (quoting Estes
v. Texas, 381 U.S. 532, 552, 85 S. Ct. 1628, 1637, 14 L. Ed. 2d 543 (1965) (Warren,
C.J., concurring)). A district court, therefore, must closely scrutinize any practice
affecting the trial process, evaluating its likely impact on the judgment of jurors
based on “reason, principle, and common human experience.” Estelle, 425 U.S. at
504, 96 S. Ct. at 1693.
To prevail on a claim of being denied a fair trial based on a district court’s
decision to implement a particular practice, a criminal defendant must demonstrate
either actual or inherent prejudice. Woods, 923 F.2d at 1457 (citing Holbrook, 475
U.S. at 560, 106 S. Ct. at 1340, and Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6
L. Ed. 2d 751 (1961)). With regard to inherent prejudice, the test is “not whether
jurors actually articulated a consciousness of some prejudicial effect, but rather
whether ‘an unacceptable risk is presented of impermissible factors coming into
play.’” Id. (citing Holbrook, 475 U.S. at 570, 106 S. Ct. at 1346). Thus, the test
for inherent prejudice requires us to consider (1) “whether there is an
‘impermissible factor coming into play,’” and (2) “whether it poses an
‘unacceptable risk.’” Id. Where a criminal defendant succeeds in proving actual
or inherent prejudice due to the use of a particular procedure at trial, the state must
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justify such procedure with an “essential state interest specific to [the] trial.” Id.
(citing Holbrook, 475 U.S. at 569, 106 S. Ct. at 1346).
We have long held that physical restraints upon a defendant “should be used
as rarely as possible” as a courtroom security measure at trial, given their tendency
to disrupt a criminal defendant’s constitutionally guaranteed rights. Durham, 287
F.3d at 1304–05 (citing Allen v. Montgomery, 728 F.2d 1409, 1413 (11th Cir.
1984), and Zygadlo, 720 F.2d at 1223). Physical restraints, such as shackles and
tasers, tend to erode a defendant’s right to a presumption of innocence, as well as
his rights to confer with counsel, be present at trial, and participate in his defense.
See id. (citing Mayes, 158 F.3d at 1225, and Zygadlo, 720 F.2d at 1223). Even so,
we have found that it may be appropriate to use these restraints in certain
circumstances to ensure the safe and orderly progress of trial. Id. at 1303 (quoting
Theriault, 531 F.2d at 284).
Before a district court may order the use of shackles or a taser as a security
measure at trial, the court must make a case-specific, individualized assessment of
each defendant in the particular trial. Baker, 432 F.3d at 1244 (citing Deck, 544
U.S. at 633, 125 S. Ct. at 2015). This assessment may involve the following
considerations, among others:
the criminal history and background of each of the defendants,
including whether the defendant has a history of violent acts; the
number of defendants being tried together; the nature of the charges
pending against the defendant, including whether the charged offenses
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include violent criminal conduct; any past history of conduct by a
defendant that may have disrupted a criminal proceeding; and other
circumstances, such as threatening behavior against witnesses or court
personnel, that may reasonably bear upon the safety of the courtroom
and its occupants or upon the danger of escape.
Id. If a district court intends to require a defendant to wear a physical restraint at
trial, the court must state its reasons for doing so on the record. Durham, 287 F.3d
at 1304 (citing Theriault, 531 F.2d at 285).
In reviewing a district court’s decision to implement physical restraints for
an abuse of discretion, our inquiry is twofold. First, we consider whether “there
was an essential state interest furthered by compelling a defendant to wear
shackles” or a taser. Id. (quoting Elledge v. Dugger, 823 F.2d 1439, 1451 (11th
Cir. 1987) (per curiam)). Second, we look to whether “less restrictive, less
prejudicial methods of restraint were considered or could have been employed.”
Id. (quoting Elledge, 823 F.2d at 1451); see also id. at 1306 & n.8 (stating that the
record must also contain the district court’s factual findings regarding the basic
operation of an electronic device, such as a taser, but only if the defendant raised a
factual question as to the device’s functionality).
By contrast, the Supreme Court has determined that the presence of
uniformed security officers in the courtroom as a security measure at trial is not the
sort of inherently prejudicial procedure that must be supported by an essential state
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interest specific to the trial. Holbrook, 475 U.S. at 568–69, 106 S. Ct. at 1345–46.
As the Supreme Court explained,
[t]he chief feature that distinguishes the use of identifiable security
officers from courtroom practices we might find inherently prejudicial
is the wider range of inferences that a juror might reasonably draw
from the officers’ presence. While shackling and prison clothes are
unmistakable indications of the need to separate a defendant from the
community at large, the presence of guards at a defendant’s trial need
not be interpreted as a sign that he is particularly dangerous or
culpable. Jurors may just as easily believe that the officers are there
to guard against disruptions emanating from outside the courtroom or
to ensure that tense courtroom exchanges do not erupt into violence.
Indeed, it is entirely possible that jurors will not infer anything at all
from the presence of the guards. If they are placed at some distance
from the accused, security officers may well be perceived more as
elements of an impressive drama than as reminders of the defendant’s
special status. Our society has become inured to the presence of
armed guards in most public places; they are doubtless taken for
granted so long as their numbers or weaponry do not suggest
particular official concern or alarm.
Id. at 569, 106 S. Ct. at 1346 (citing Hardee v. Kuhlman, 581 F.2d 330, 332 (2d
Cir. 1978)). Thus, we must determine prejudice resulting from the presence of law
enforcement officers on a case-by-case basis. Id.
The district court in this case mandated, in part, that the Appellants wear
shackles and tasers under their clothing at trial; that additional law enforcement
personnel be present at trial and seated in the first row of the gallery; and that all
trial attendees, other than the jurors, pass through an additional metal detector prior
to entering the courtroom. However, the court did so only after the prosecution
made a proffer concerning several security issues at the March 15, 2012, status
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conference, including threats to the prosecutors, threats to two cooperating
witnesses, and the fact that the Appellants’ family members would be attending
trial and could become aggravated upon hearing the testimonies of the victims and
coconspirators. The district judge later stated on the record at the March 27, 2012,
status conference that he had met with the U.S. Marshals several times to discuss
“a lot of security issues,” and that he was especially concerned about the
Appellants’ family members being in the courtroom with the families of the
witnesses testifying against the Appellants.
It was against this backdrop that the district judge informed counsel at the
status conference of his intention to enter an order regarding security measures,
and proceeded to detail the contents of that order. Although the district court went
so far as to hold a separate sealed proceeding on April 2, 2012, to formally place
the reasons for the security measures on the record, we find that the district judge
had adequately stated these reasons on the record at the March 27, 2012, status
conference and reiterated the same at jury selection on March 30, 2012.
Indeed, the district judge made a case-specific assessment of the Appellants
at the status conference, in stating that he had met with the U.S. Marshals on
multiple occasions to discuss the prevailing security issues in this case, and found
it particularly concerning that the Appellants’ family members would be present at
trial in close proximity to the family members of the victims and cooperators
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testifying against the Appellants. See Baker, 432 F.3d at 1244 (stating that a court
may consider “circumstances . . . that may reasonably bear upon the safety of the
courtroom and its occupants or upon the danger of escape”). While the district
judge specifically mentioned having considered only this portion of the proffer
given at the previous status conference, the judge’s general reference to the many
security issues in the case could reasonably be viewed as incorporating the rest of
the proffered information—namely, the threats allegedly made toward the
prosecutors and two witnesses. See id. (listing relevant considerations as including
“any past history of conduct by a defendant that may have disrupted a criminal
proceeding,” as well as “other circumstances, such as threatening behavior against
witnesses or court personnel”). Even assuming that the district judge had
considered only the information regarding the likelihood of tension among
audience members at trial, the record reflects that the judge had met and discussed
this concern with counsel and the U.S. Marshals many times. Under these
circumstances, we find that the judge’s consideration of this matter on the record
was, indeed, a case-specific assessment.
Although the district judge’s reasoning on the record related to the
Appellants at large, rather than to Wilson, Daniels, and Pierce individually, we
have found that the failure to make express defendant-by-defendant findings in
ordering the use of physical restraints does not necessarily amount to an abuse of
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discretion. See id. at 1245. This is particularly true where the indicted charges
were violent; there were multiple defendants on trial; the defendants had a full
opportunity to respond to the court’s security concerns and propose alternative
measures; and there is no record evidence that the jury could see the physical
restraints. See id.; see also Wilson v. United States, 505 F. App’x 884, 887–88
(11th Cir. 2013). It is undisputed that the Appellants were indicted for violent
crimes; their counsel responded and raised objections to the security issues, both in
writing and at the pretrial status conferences; and nothing in the record suggests
that their shackles and tasers were visible to the jury. As such, we cannot find that
the district judge’s assessment of the facts of this particular case was insufficient
on this basis.
Rather, we find that the district judge’s evaluation of this case supported
employing physical restraints to further an essential state interest. See Durham,
287 F.3d at 1304 (quoting Elledge, 823 F.2d at 1451) (requiring that a district
court’s decision to compel a defendant to wear physical restraints be supported by
an essential state interest). Notably, the district judge identified this interest on the
record at both the March 27, 2012, status conference and the jury-selection
proceeding, explaining that the measures were put into place for security purposes.
See Deck, 544 U.S. at 628, 125 S. Ct. at 2012 (stating that an essential state interest
may include ensuring physical security, preventing escape, or maintaining
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courtroom decorum); see also Mayes, 158 F.3d at 1225 (“Courtroom security is a
competing interest that may, at times, ‘outweigh[ ] a defendant’s right to stand trial
before the jury untainted by physical reminders of his status as an accused.’”
(alteration in original) (quoting Allen, 728 F.2d at 1413)). Given that this case
involved violent gang-related charges against multiple defendants, threats against
the prosecutors and witnesses that were never proven to be unfounded or untrue,
and many trial attendees strongly siding with either the Appellants or the witnesses
testifying against them, the district court had a legitimate interest in ensuring the
physical security of counsel, witnesses, spectators, and all others who would be
present at trial.
Moreover, the court gave counsel multiple opportunities to object to the
security practices and, ultimately, ordered that the physical restraints be
accompanied by certain precautionary measures designed to minimize the risk of
prejudice to Appellants. Durham, 287 F.3d at 1304 (quoting Elledge, 823 F.2d at
1451) (requiring that a district court have considered or have employed less
restrictive, less prejudicial methods of physical restraint). In particular, the district
court directed that the shackles and tasers be worn under the Appellants’ clothing,
the counsel tables skirted, and the shackles taped to the Appellants’ legs, to prevent
the jury from seeing or hearing the restraints. In doing so, the district court
employed the least restrictive and least prejudicial means of restraint available,
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thus fulfilling the procedural prerequisites to utilizing this type of security
measure. See Mayes, 158 F.3d at 1226 (“[W]e find no abuse of discretion in the
district court’s decision that shackling was appropriate during the course of the
appellants’ trial and that leg irons were the least restrictive method of effective
restraint.”); cf. Deck, 544 U.S. at 634–35, 125 S. Ct. at 2015 (finding that the lower
court erred in requiring shackling of the defendant, in part because the court failed
to explain “why, if shackles were necessary, [it] chose not to provide for shackles
that the jury could not see”).
Even assuming, arguendo, that the district court abused its discretion in
instituting physical restraints, such error would not be sufficiently prejudicial as to
warrant a reversal of the Appellants’ convictions. Indeed, because the Appellants’
clothing and the table skirts covered the shackles and tasers, and the shackle chains
were taped to the Appellants’ legs, the jury could neither see nor hear the
restraints. Thus, the presence of the physical restraints could not have affected the
juror’s attitudes or their presumption of the Appellants’ innocence, such that they
could be considered “inherently prejudicial” in any way. See Durham, 287 F.3d at
1305 (“One of the most prominent concerns about the use of most methods of
restraint comes from the possibility of prejudice to the defendant if those restraints
are visible to the jury.” (emphasis added) (citing Elledge, 823 F.2d at 1454
(Edmondson, J., concurring))); Mayes, 158 F.3d at 1226–27 (finding that shackling
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was not prejudicial where the district court required the use of tablecloths to screen
the appellants’ legs from jury view and padding of the chains to muffle any
sounds). Nor is there any evidence that the use of these restraints actually impaired
the Appellants’ ability to consult with their counsel and participate in their defense.
Absent any indication that the presence of the shackles and tasers contributed in
any way to the verdict obtained, any error on the part of the district court in
ordering these restraints as a security measure would be harmless beyond a
reasonable doubt.
Appellants also fail to demonstrate any prejudice resulting from the presence
of additional law enforcement personnel and an additional metal detector at trial.
The district court directed the additional law enforcement officers to be in plain
clothes, and nothing in the record indicates that the jury was aware that these
spectators were officers or otherwise perceived a hostile atmosphere in the
courtroom. Cf. Holbrook, 475 U.S. at 570–72, 106 S. Ct. at 1346–48 (holding that
the presence of four uniformed state troopers in the front row of the gallery was
neither inherently nor actually prejudicial to the defendant). Further, the district
court instructed that the jurors not pass through the door with the additional metal
detector in entering the courtroom. Significantly, the record lacks any evidence
that the jurors were aware that the spectators were subject to this screening, or,
even if they were, that they would have known that the second metal detector was
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anything out of the ordinary. See United States v. Howell, 514 F.2d 710, 715 (5th
Cir. 1975) (no prejudice where all persons entering courtroom, including jurors,
were required to pass through two metal detectors).
The Appellants thus fall short of demonstrating that the additional law
enforcement personnel and metal detector posed any risk that an impermissible
factor would affect the jury’s decision-making process, or that these measures
actually prejudiced that process in any way. And, even if we were able to discern
some degree of prejudice attributable to these practices, the Appellants’ claims of
being denied a fair trial on these grounds would nevertheless fail based on the
existence of an essential state interest, as discussed supra, that provided sufficient
cause for this level of security.
B. Gang Expert Testimony
Wilson and Daniels also contend that the district court erred in denying their
motions in limine and allowing Detective Caffey, who has specific and personal
knowledge of California gangs, to testify as an expert about Montgomery,
Alabama gang activity and his opinion of the Appellants’ conduct during the home
invasion in this case. Specifically, the Appellants challenge the reliability of
Detective Caffey’s opinion on the grounds that he failed to explain how his
experience led to the conclusions reached, and how he reliably applied that
experience to the facts of this case. The Appellants also argue that Detective
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Caffey’s testimony was irrelevant to the allegations in the indictment, highly
prejudicial to the Appellants, and misleading and confusing to the jury.
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702. Fed. R. Evid. 702. That rule requires a district court to engage in a
three-prong inquiry, considering whether
(1) the expert is qualified to testify competently regarding the matters
he intends to address; (2) the methodology by which the expert
reaches his conclusions is sufficiently reliable as determined by the
sort of inquiry mandated in Daubert; and (3) the testimony assists the
trier of fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to determine a
fact in issue.
Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Chems., Inc.,
158 F.3d 548, 561 (11th Cir. 1998)). The proponent of the expert opinion bears the
burden of establishing qualification, reliability, and helpfulness by a preponderance
of the evidence. Id. (quoting McCorvey, 298 F.3d at 1257); see also Daubert, 509
U.S. at 592 n.10, 113 S. Ct. at 2796.
The Supreme Court has identified certain factors that may be probative in
assessing the reliability of an expert’s methodology under the second prong: “(1)
whether it can be (and has been) tested; (2) whether it has been subjected to peer
review and publication; (3) what its known or potential rate of error is, and whether
standards controlling its operation exist; and (4) whether it is generally accepted in
the field.” Brown, 415 F.3d at 1267 (citing Daubert, 509 U.S. at 593–94, 113 S.
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Ct. at 2796–97). However, the Supreme Court has emphasized that the Daubert
factors “do not constitute a definitive checklist or test.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 150, 119 S. Ct. 1167, 1175, 143 L. Ed. 2d 238 (1999)
(emphasis omitted) (internal quotation marks omitted) (citing Daubert, 509 U.S. at
593, 113 S. Ct. at 2796).
Rather, because the inquiry under Rule 702 must be tied to the particular
facts of the case, the Daubert factors “may or may not be pertinent in assessing
reliability, depending on the nature of the issue, the expert’s particular expertise,
and the subject of his testimony.” Id. (citations omitted) (citing Daubert, 509 U.S.
at 591, 113 S. Ct. at 2796). As such, a district court maintains “the same kind of
latitude in deciding how to test an expert’s reliability, and to decide whether or
when special briefing or other proceedings are needed to investigate reliability, as
it enjoys when it decides whether or not that expert’s relevant testimony is
reliable.” Id. at 152, 119 S. Ct. at 1176 (emphasis omitted) (internal quotation
marks omitted) (citing Daubert, 509 U.S. at 593, 113 S. Ct. at 2796).
Some of the Daubert factors may help to evaluate the reliability of expert
testimony, like that of Detective Caffey, that is based on experience, if those
factors are “reasonable measures of the reliability” of the testimony in the case. Id.
at 150–51, 119 S. Ct. at 1176. In other cases, different questions may be more
useful, such as “how often an . . . expert’s experience-based methodology has
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produced erroneous results,” “whether such a method is generally accepted in the
relevant . . . community,” or “whether his preparation is of a kind that others in the
field would recognize as acceptable.” Frazier, 387 F.3d at 1262 (quoting Kumho
Tire Co., 526 U.S. at 151, 119 S. Ct. at 1176). A district court, in some
circumstances, “may determine the reliability prong under Daubert based primarily
upon an expert’s experience and general knowledge in the field.” Kilpatrick v.
Breg, Inc., 613 F.3d 1329, 1336 (11th Cir. 2010). But if the witness relies solely or
primarily on experience as the basis of his expertise, he must explain “how that
experience leads to the conclusion reached, why that experience is a sufficient
basis for the opinion, and how that experience is reliably applied to the facts.”
Frazier, 387 F.3d at 1261 (emphasis omitted) (citing Fed. R. Evid. 702 advisory
committee’s note to 2000 amendment).
Notwithstanding the apparent relevance and reliability of proffered expert
testimony under Rule 702, the testimony may be excluded from evidence by
application of Federal Rule of Evidence 403. According to Rule 403, a district
court may exclude otherwise admissible evidence “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Of particular
concern with regard to Rule 403 is the “powerful and potentially misleading effect
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of expert evidence.” Frazier, 387 F.3d at 1263 (citing Daubert, 509 U.S. at 595,
113 S. Ct. at 2798) (“Simply put, expert testimony may be assigned talismanic
significance in the eyes of lay jurors, and, therefore, the district courts must take
care to weigh the value of such evidence against its potential to mislead or
confuse.”).
Contrary to Wilson’s and Daniels’ assertions, Detective Caffey was
qualified to testify as a gang expert in this case, satisfying the first requirement of
Rule 702. See id. at 1261 (“[E]xpert status may be based on ‘knowledge, skill,
experience, training, or education.” (quoting Fed. R. Evid. 702 advisory
committee’s note to 2000 amendment)). Detective Caffey’s experience included
thirty years with the LAPD specializing in street gangs, during which time he
participated in extensive investigation and interviewing of thousands of Blood
gang members on both the west and east coasts, often for the purpose of
identifying gang membership. He also served as a nationwide consultant, speaker,
and instructor on the origins, customs, and practices of the Bloods, and appeared in
a documentary on Bloods and Crips televised to a national audience.
While the Appellants emphasize that Detective Caffey never testified to
having worked specifically with Montgomery, Alabama gang members or the
Appellants in this case, Detective Caffey’s expertise, for the purposes of this trial,
“did not need to extend to every detail and intricacy particular to [the] personal
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history and organization” of the Blood gang at this specific location. See Augustin,
661 F.3d at 1125 (affirming the district court’s finding that the proffered expert
was qualified to testify as to the organization, history, and symbols of a specific
Chicago, Illinois, gang based on his fifteen years of experience working with
Chicago street gangs, investigating and interviewing gang members, serving as a
consultant in over fifty gang investigations nationwide, and contributing to a
documentary series on street gangs). Nor did Detective Caffey need to go so far as
to interview the Appellants in order to offer expert opinion on the evidence in this
case. See Kumho Tire Co., 526 U.S. at 148, 119 S. Ct. at 1174 (“[E]xperts may
testify to opinions, including those that are not based on firsthand knowledge or
observation.” (citing Daubert, 509 U.S. at 592, 113 S. Ct. at 2786)). Rather,
because Detective Caffey’s expertise included knowledge of not only the origin
and customs of the Blood gang in California, but also the general trends and
distinctions among Blood gang members throughout the country, including those
in Montgomery, Alabama, he was qualified to testify regarding these matters.
The second requirement, the reliability of the expert’s methodology, was
also established by Detective Caffey’s testimony. Detective Caffey recited his
extensive experience identifying Blood gang members through investigative and
interview techniques, and laid out the various identifiers of Blood gang
membership nationwide. Those identifiers included, among others, the color red,
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Philadelphia Phillies paraphernalia, clothing displaying a “B” or “P,” hand signs,
the use of the word “Piru,” the carrying of firearms, and criminal activity. He
stated that he had reviewed certain evidence in this case, such as transcripts,
recordings, and photographs, and, when asked to comment on that evidence, noted,
on the record, several gang identifiers present therein and reiterated the
significance or meaning behind each.
When questioned about the statements of one of the victims of the home
invasion, Detective Caffey drew focus to the victim’s statements that the
perpetrators wore red hats, one bearing the Philadelphia Phillies “P,” and shouted
the word “Piru” repeatedly. Based on those facts, Detective Caffey opined that the
conduct of the perpetrators of the home invasion—namely, “being in a house while
committing a crime, shouting the term ‘Piru’”—was consistent with the activity
that he had observed, in his experience, among Blood gang members. Detective
Caffey further offered his opinion that the Philadelphia Phillies hat likewise was
indicative of Blood gang membership.
From this testimony, the district court could reasonably infer that Detective
Caffey reached his opinions on the facts of this case, including his opinion
regarding the Appellants’ conduct during the home invasion, by relying on his
experience investigating individuals for certain gang identifiers, looking for those
identifiers in the evidence provided to him, and drawing general conclusions about
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the nature of that evidence based on the presence of those identifiers. Further,
Detective Caffey’s years of experience applying this methodology to resolve
identification issues sufficiently supported the reliability of his application to the
facts in this case, and his express observations and reasoning on the record
reinforce this conclusion.
Interestingly enough, the reliability of Detective Caffey’s methodology finds
further support in the fact that Pierce’s own expert, Taylor-Austin, relied on similar
experience-based credentials and the same gang-membership identifiers in
assessing the conduct of the Appellants. Indeed, Taylor-Austin confirmed that
clothing in a specific color, Philadelphia Phillies memorabilia, and terminology
such as “Piru” were factors suggestive of Blood gang membership, and reached a
conclusion regarding the evidence in this case based, in part, on these facts. See id.
at 151, 119 S. Ct. at 1176 (recognizing that it may be appropriate to ask an expert
relying on experience “whether his preparation is of a kind that others in the field
would recognize as acceptable,” and “whether [his] . . . method is generally
accepted in the relevant . . . community”).
The only cognizable difference between the opinions of Detective Caffey
and Taylor-Austin was not whether the evidence contained indicators of Blood
gang membership, but rather whether those indicators pointed to membership
solely in the Blood gang or in a hybrid gang having features of both the Bloods and
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other gangs. However, that Detective Caffey and Taylor-Austin arrived at
different conclusions in applying similar methodologies—while perhaps relevant
to the weight accorded to their opinions—in no way undermined the reliability of
Detective Caffey’s methodology, or the admissibility of this evidence, at the
outset. Cf. id. at 153, 119 S. Ct. at 1177 (“[A]fter considering respondents’
defense of [the expert’s] methodology, the District Court determined that [his]
testimony was not reliable. It fell outside the range where experts might
reasonably differ, and where the jury must decide among the conflicting views of
different experts, even though the evidence is ‘shaky.’” (citing Daubert, 509 U.S.
at 596, 113 S. Ct. at 1786)).
Turning to the third and final requirement of Rule 702, Detective Caffey’s
testimony was likely to assist the jury in understanding the evidence introduced at
trial.13 When Detective Caffey took the stand, the jury had already heard from
other witnesses, including the Appellants’ coconspirators and the victims of the
home invasion, who testified to many unique traits of the Appellants. For
example, the Appellants’ coconspirators had testified, in part, that Wilson and
Daniels were Blood gang members with either “OG,” “double OG,” or “triple OG”
status; wore red; carried firearms every day; used the term “Piru” frequently; and
13
Although Wilson and Daniels do not frame their arguments in terms of “helpfulness to the
jury,” the Court, in an abundance of caution, addresses this requirement here, given the
Appellants’ objections to the admission of Detective Caffey’s testimony under Rule 702
generally, as well as their concerns about the testimony’s potential effect on the jury.
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replaced the letter “C” with “B” when communicating with other gang members. 14
Likewise, the victims of the home invasion had described their perpetrators as
wearing red hats, one containing the Philadelphia Phillies’ “P,” and tennis shoes
with red shoe laces; carrying firearms; and shouting the word “Piru” multiple
times. Other evidence presented to the jury had included photographs and
recordings of telephone conversations, in which the Appellants exhibited these
same mannerisms.
Interwoven throughout these items of evidence were details that, without
more, may have appeared meaningless, extraneous, or even confusing to the jurors.
Detective Caffey’s testimony, however, served to put these facts into context,
helping the jury to understand not only the meaning but also the import of this
evidence in evaluating the alleged gang activity underpinning the conspiracy
charge. Thus, Detective Caffey’s own testimony provided ample support for the
qualification, reliability, and helpfulness requirements, such that the district court
did not err in finding this testimony relevant and admissible under Rule 702.
Nor did the district court abuse its discretion in admitting Detective Caffey’s
testimony over the Appellants’ objections under Rule 403. Detective Caffey’s
testimony regarding the Blood street gang—in particular, his opinion that the
Appellants’ conduct was consistent with that of Blood gang members—was highly
14
Anthony Tallie testified that Daniels was a “triple OG,” and Wilson an “OG” or “double
OG,” while Willie Tallie represented that both held the “OG” rank.
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probative of the conspiracy charge in Count One of the indictment. The essence of
the conspiracy charge was that the Appellants were all members of the same street
gang, and, as such, evidence of the Appellants’ membership in or affiliation with
the Blood gang tended to make the prosecution’s theory of the case more likely.
See United States v. Ross, 33 F.3d 1507, 1525 & n.31 (11th Cir. 1994) (uncharged
acts of gang violence admissible as intertwined with, and probative of, conspiracy
charge); United States v. Harrell, 737 F.2d 971, 978 (11th Cir. 1984) (gang
evidence important in understanding existence, motives, and object of drug-
trafficking conspiracy and means through which it was conducted); see also United
States v. Archuleta, 737 F.3d 1287, 1294 (10th Cir. 2013) (stating that gang-
affiliation testimony is admissible in cases where conspiracy is charged “to prove
the existence of a conspiracy and to show the basis of the relationship between the
defendant[s] and witnesses who participated” in the wrongful activity).
Moreover, of the gang evidence adduced at trial, Detective Caffey’s
testimony was particularly probative of the conspiracy charge, because it served to
clarify certain ambiguities and fill in the gaps left by the other gang evidence. See
United States v. Bradberry, 466 F.3d 1249, 1253–54 (11th Cir. 2006) (evidence of
defendant’s gang membership was probative, because it helped explain his
connection to other individuals and circumstances in which they committed
charged offense); Jernigan, 341 F.3d at 1284 (evidence of defendant’s membership
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in gang that used color red as symbol and wrapped weapons in red bandanas was
“especially probative” in light of evidence that defendant’s weapon was found
wrapped in red bandana); see also Augustin, 661 F.3d at 1126 (gang evidence
became relevant upon admission of recordings of defendant discussing such gang
and likening himself to its leader).
It is not lost on the Court that evidence of a defendant’s gang membership
necessarily carries a potential for unfair prejudice. See Bradberry, 466 F.3d at
1253 (citing Jernigan, 341 F.3d at 1284–85); Jernigan, 341 F.3d at 1284–85
(“Indeed, modern American street gangs are popularly associated with a wealth of
criminal behavior and social ills, and an individual’s membership in such an
organization is likely to provoke strong antipathy in a jury.”). However, most
evidence is prejudicial to one party in one way or another, and nothing in this case
suggests that Detective Caffey’s testimony was assigned undue weight by the jury,
or otherwise prejudiced the Appellants in a way that was anything other than what
could be expected of evidence offered against a party. See Augustin, 661 F.3d at
1126 (gang evidence not unfairly prejudicial); Bradberry, 466 F.3d at 1253–54
(same). Nor is there any evidence that Detective Caffey’s testimony misled the
jury or caused confusion of the issues. To the contrary, and for the reasons
discussed with regard to its helpfulness, his testimony could have served only to
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clarify the gang references, symbols, and terminology present in the testimony and
other evidence that had come before it.
At most, the Appellants make an argument that Detective Caffey’s testimony
presented a close question under Rule 403. In such circumstances, the decision of
whether to admit the evidence falls “squarely within the ambit of the district
court’s sound discretion,” and we are ill positioned to disturb the district court’s
ruling on appeal. Bradberry, 466 F.3d at 1254 (quoting Jernigan, 341 F.3d at
1285); Jernigan, 341 F.3d at 1285 (“[T]he district court is uniquely situated to
make nuanced judgments on questions that require the careful balancing of fact-
specific concepts like probativeness and prejudice.” (citing United States v.
Williams, 216 F.3d 611, 615 (7th Cir. 2000))). We therefore cannot say that the
district court abused its discretion in allowing Detective Caffey to testify as an
expert at trial.
IV. CONCLUSION
In light of the foregoing, we find no reversible error in the enhanced security
measures and the gang-expert testimony at trial. Accordingly, we AFFIRM the
Appellants’ convictions and sentences in all respects.
47