United States v. Charles Galloway , 749 F.3d 238 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4545
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES LEONARD GALLOWAY, a/k/a Len,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cr-00775-RDB-1)
Argued: December 11, 2013 Decided: April 15, 2014
Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Judge Duncan joined.
ARGUED: Megan Elizabeth Coleman, MARCUSBONSIB, LLC, Greenbelt,
Maryland, for Appellant. Sujit Raman, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF:
Rod J. Rosenstein, United States Attorney, Ayn B. Ducao,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
NIEMEYER, Circuit Judge:
Charles Galloway was convicted in Baltimore, Maryland, of
conspiracy to distribute and possess with intent to distribute
one kilogram or more of heroin, in violation of 21 U.S.C. §§ 846and 841(a)(1). The district court sentenced Galloway to 292
months’ imprisonment, and Galloway filed this appeal, raising
several issues with respect to his conviction. We affirm.
I
In connection with an investigation based in San Diego,
California, of an international drug trafficking conspiracy,
Special Agent James Karas of the DEA uncovered the involvement
of Charles Galloway in Baltimore, Maryland. Based on
information provided by Special Agent Karas, Detective Keith
Sokolowski of the Baltimore City Police Department began
investigating Galloway and eventually obtained authorization to
place wiretaps on four of his cell phones. Through these
wiretaps, Detective Sokolowski learned that Galloway used one
phone predominantly for drug-related conversations, while he
reserved a second phone for his conversations with Santos
Chavez, a coconspirator in the Los Angeles, California area.
Based on the intercepted conversations and on the testimony of
actual drug traffickers in the Baltimore area, Galloway was
convicted of conspiracy to traffic in heroin.
2
At trial, Special Agent Karas and Detective Sokolowski
testified not only as fact witnesses, but also as expert
witnesses in drug distribution methods and the interpretation of
the coded language used in narcotics-related telephone calls.
The officers explained how drug traffickers use unrelated words
to refer to drugs, prices, and related issues, explaining that
while there is no established vocabulary, the meaning of the ad
hoc words used in lieu of other possibly incriminating words may
be derived from context. The officers testified that, in their
opinions, Galloway and his coconspirators used such coded
language in their intercepted conversations.
Following Galloway’s conviction, the district court
sentenced him to 292 months’ imprisonment.
This appeal followed.
II
Galloway contends first that he was denied effective
assistance of counsel by the privately retained lawyer who
represented him for approximately five months -- from July 2011
until he was permitted to discharge her in January 2012, which
was somewhat more than two months before trial commenced. He
states that this lawyer failed to file any substantive pretrial
motions on his behalf, failed to demand discovery in a timely
fashion, and failed to communicate with him about his case. He
3
further asserts that her deficient performance resulted in his
being “at a disadvantage at the motions hearing”; in his having
“to scramble” with stand-by counsel for discovery only “weeks
before trial”; and in his “electing to go forward with a trial,
unprepared.”
It is well established that “a defendant may raise [a]
claim of ineffective assistance of counsel in the first instance
on direct appeal if and only if it conclusively appears from the
record that . . . counsel did not provide effective assistance.
Otherwise, [he] must raise [his] claim in the district court by
a collateral challenge pursuant to 28 U.S.C. § 2255 . . . .”
United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995)
(emphasis added) (internal quotation marks omitted). This
standard is demanding, and Galloway has not met it here.
While the record surely supports Galloway’s claim that he
was dissatisfied with his first lawyer’s services, he fails to
demonstrate from the record that her performance fell below an
objective standard of reasonableness, especially given that
“[i]n evaluating counsel’s performance, we must ‘indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’” Sexton v.
French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Strickland v.
Washington, 466 U.S. 668, 689 (1984)). At most, the record
establishes that Galloway lodged serious allegations against his
4
lawyer, which his lawyer disputed. As such, the record does not
show conclusively that his allegations had any merit.
Moreover, Galloway has not shown that he was prejudiced by
his first lawyer’s performance. To meet this element of an
ineffective assistance claim, Galloway would have to show “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different” and that “the result of the proceeding was
fundamentally unfair or unreliable.” Sexton, 163 F.3d at 882(internal quotation marks and citations omitted). But the
record shows that soon after Galloway brought his complaints
about his first lawyer’s services to the attention of the
district court, the court appointed an Assistant Federal Public
Defender to represent him and pushed back his trial date.
Galloway’s new counsel was then given a full opportunity to
present pretrial motions on his behalf and to prepare for trial.
In light of these precautionary measures, Galloway’s claim that
he was ultimately unprepared for trial surely stems more from
subsequent decisions he made (1) to discharge the Assistant
Federal Public Defender representing him; (2) to withdraw that
lawyer’s motion to continue the trial date; and (3) to represent
himself at trial with stand-by counsel.
5
In short, Galloway’s showing on this issue falls far short
of conclusively establishing the ineffectiveness of his first
counsel.
III
Galloway next contends that the district court abused its
discretion by depriving him of meaningful access to discovery
while he prepared his pro se defense. Specifically, he objects
to the court’s ruling that he could not take any discovery
materials to the detention center where he was being held,
including any handwritten notes he made regarding the discovery
he reviewed. In addition, he contends that the alternative
setup provided for him to review discovery in the U.S.
Courthouse’s lockup area was inadequate because the room did not
have an electrical outlet, limiting his ability to review
electronic evidence.
Based on the circumstances, we conclude that the district
court acted within its discretion in so controlling discovery.
As the court explained, “we’ve had enormous security issues with
respect to federal detention facilities,” including two
different trials over which the district judge presided
involving the murder of witnesses. Although the court
recognized that it was inconvenient for both Galloway and the
U.S. Marshals to transport Galloway to and from the U.S.
Courthouse, the court reasonably concluded that the
6
inconvenience was justified by the circumstances. And while the
lockup area did lack an electrical outlet, the Assistant Federal
Public Defender mitigated the problem by providing Galloway with
two extra laptop batteries. Finally, Galloway never sought a
continuance based on the logistics of the arrangement. Rather,
he repeatedly indicated that he did not want to postpone the
trial any further. In view of the legitimate security concerns
and Galloway’s failure to show any prejudice from the
arrangement, we find that the limitations the court imposed were
reasonable. See United States v. Sarno, 73 F.3d 1470, 1492 (9th
Cir. 1995) (concluding that while a pro se defendant’s “access
to discovery materials was hardly optimal,” the “limitations
imposed on him were reasonable”); see also United States v.
Bisong, 645 F.3d 384, 396 (D.C. Cir. 2011) (noting that, “[e]ven
assuming that pro se defendants have a Sixth Amendment right to
discovery in preparing their defense,” a defendant advancing
such a claim “must demonstrate prejudice in order to prevail”).
IV
Galloway also contends that the district court erred in
denying his motion to suppress evidence obtained through the
wiretaps, contending that the affidavits submitted in support of
the wiretap applications failed to set forth specific facts
showing why the wiretaps were necessary, as required by 18
7
U.S.C. § 2518. To obtain authorization for a wiretap, federal
law requires the government to submit an application containing
“a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be
too dangerous.” 18 U.S.C. § 2518(1)(c). Galloway acknowledges
that the affiants addressed why they believed that they would
not be able to identify all the coconspirators or to achieve the
investigation’s other objectives by using traditional
investigatory procedures alone, but he asserts that the
explanations amounted to bare conclusory statements and
boilerplate recitations that would more or less apply to any
drug-trafficking investigation.
Although the government filed three separate wiretap
applications with the Circuit Court for Baltimore City in order
to obtain authorization to intercept calls over four cell phones
used by Galloway, only the affidavits submitted in support of
the first two wiretap applications -- one submitted on May 26,
2010, and one submitted on June 8, 2010 -- are at issue. Those
affidavits detailed at length the steps that police officers had
taken since January 2010 in investigating the Baltimore portion
of an international drug conspiracy, and they contained fairly
extensive discussions of why the affiants believed the wiretaps
were necessary, addressing at least ten alternative
8
investigatory procedures. They explained that the police had
already used several of those techniques -- for example,
conducting physical surveillance, analyzing telephone toll
records, and affixing GPS devices -- but that those methods had
failed to reveal the full scope of the organization, showing
instead “that members of this organization [were] extremely
cautious in their movements and activities.” The affidavits
further explained why the officers believed that other
investigatory techniques were unlikely to achieve the
investigation’s objectives, taking the position that certain
methods (e.g., attempting to develop a confidential informant,
subpoenaing witnesses to appear before a grand jury, and
executing search warrants) were likely to reveal the existence
of the ongoing investigation to Galloway and his associates,
while other methods (e.g., trash searches and pole cameras) were
not practical under the circumstances.
Based on this record, we cannot conclude that the
authorizing court abused its discretion when it determined that
the government had submitted sufficient facts to show the need
for the wiretaps. See United States v. Wilson, 484 F.3d 267,
280 (4th Cir. 2007). The government’s burden “is not great.”
United States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994).
While it cannot meet its burden with “bare conclusory statements
that normal techniques would be unproductive or mere boilerplate
9
recitation of the difficulties of gathering usable evidence,”
“it need only present specific factual information sufficient to
establish that it has encountered difficulties in penetrating
[the] criminal enterprise or in gathering evidence” such that
“wiretapping becomes reasonable,” despite “the statutory
preference for less intrusive techniques.” Id. at 1297-98(alteration in original) (internal quotation marks and citations
omitted). We believe that this standard was satisfied here.
Accordingly, we conclude that the district court did not
err in denying Galloway’s motion to suppress the wiretap
evidence.
V
Finally, Galloway contends that the district court abused
its discretion in admitting expert testimony from Special Agent
Karas and Detective Sokolowski under Federal Rule of Evidence
702, as well as in managing the presentation of their testimony
so as to avoid any confusion that might be caused by their
testifying both as fact witnesses and as expert witnesses. More
particularly, Galloway argues (1) that the court erred in
receiving Special Agent Karas as an expert witness because he
failed adequately to explain his methodology for identifying and
translating coded language; (2) that the court failed to ensure
that both witnesses reliably applied their methods and
10
principles to the facts in the case; and (3) that the court
failed to enforce safeguards to prevent the jury from being
confused regarding the officers’ dual roles.
Galloway did not raise these challenges during trial and,
in particular, did not object to the portions of testimony to
which he now objects. Accordingly, he must satisfy the plain
error standard of review, which requires that he show that the
district court erred in receiving and managing the officers’
testimony; that the errors were plain; and that the errors
affected the outcome of the trial. See Fed. R. Crim. Proc.
52(b); United States v. Olano, 507 U.S. 725, 732-34 (1993);
United States v. Baptiste, 596 F.3d 214, 220 (4th Cir. 2010).
Moreover, even then, we will note errors only if a miscarriage
of justice would result or the errors would seriously affect the
fairness, integrity, or public reputation of the judicial
proceedings. Baptiste, 596 F.3d at 220.
The district court qualified Special Agent Karas as an
expert, based on his 15 years of experience during which he had
participated in a number of DEA investigations that used
wiretaps, personally reviewing “thousands” of narcotics-related
telephone calls. In addition, Special Agent Karas had
previously been qualified as an expert witness in other trials
with respect to the interpretation of coded language used in
narcotics-related communications. The court qualified Detective
11
Sokolowski as an expert on similar grounds, relying on his
extensive experience investigating narcotics organizations,
which included listening to “thousands” of intercepted drug-
related conversations and testifying about the coded language
used in them. Detective Sokolowski explained how, through his
experience, he had become familiar with the fact that drug
dealers use coded language when speaking about narcotics and
that, while there were some common code words, most were subject
to interpretation based on the context of the conversation. As
he explained, “Basically, in the context of the call you can
just listen to the way the people go back and forth, and given
an investigation where you should have a very good understanding
of what’s going on already, you’ll understand what they’re
talking about.” Upon qualifying the first of these two officers
as an expert witness, the court instructed the prosecutor in the
jury’s presence to “be careful that we separate his lay
testimony as a lay witness from the proffer of any expert
testimony.”
Galloway complains about Special Agent Karas’s
interpretation of the following statement, which Chavez made
during a conversation with Galloway:
Here’s um, here’s what we’re gonna do, um, I, I don’t
want to just fly out there, like I had told you, for
just, you know, couple of bucks, so, what I have to
do, is, have 20 dollars here with me for these guys
when they gonna give me the 6 credit cards. . . .
12
Okay, they gonna give me the 3 of my boys and 3 of the
other 3.
Karas explained that, in his opinion, “20 dollars” was code for
$20,000, noting that he had previously come across narcotics
traffickers using this type of shorthand to disguise the actual
dollar amounts they were discussing. He also gave his opinion
that Chavez was using the phrase “6 credit cards,” as well as
the phrase “3 of my boys and 3 of the other 3,” as coded
language to refer to drugs.
In a similar vein, Galloway objects to Detective
Sokolowski’s explanations of conversations based on the context
given. Sokolowski testified, for example, that “demonstration”
was a code word used three times in various calls to refer to
drugs and once to refer to a gun. His interpretation was later
corroborated by an individual who testified that he had
routinely bought heroin from Galloway and that he and Galloway
had used words like “demonstrations” in their conversations as
code for drugs, guns, or whatever else they wanted “to coverup.”
Sokolowski also gave an opinion that when one of the couriers
told Galloway, “The people with the contract, they probably have
their own heads,” the courier was referring to the fact that the
network’s heroin suppliers were using their own couriers.
Sokolowski testified further that, in his opinion, “baby” and
“CDs” were code words used to refer to drugs; that “food caps”
13
and “food jars” were coded phrases used to refer to drug
packaging materials; and that the phrase “getting ready to get
the birds out” was coded language meaning that the speaker
intended “to wake early and get out on the street to sell
product.”
After reviewing the entire record, we conclude that the
district court did not plainly err in qualifying these officers
as expert witnesses, nor in receiving their testimony about
interpreting the coded portions of intercepted conversations.
In receiving this evidence, the court functioned well within the
scope of discretion given by Rule 702. As the advisory
committee’s note to that rule explains:
[W]hen a law enforcement agent testifies regarding the
use of code words in a drug transaction, the 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 (2000 amends.)
(emphasis added); see also Baptiste, 596 F.3d at 223; Wilson,
484 F.3d at 274-75.
Both of these expert witnesses operated under the principle
that drug-related conversations involve the use of code words to
conceal the true nature of illegal activities. And both used
14
the method of applying their extensive experience to analyze the
meaning of the conversations through context. Special Agent
Karas explained that because narcotics traffickers do not all
use the same code words for drugs, he has to look for meaning in
the “context of a conversation or an investigation, not stand-
alone in the word itself.” Similarly, Detective Sokolowski
explained that he had become familiar with the ways in which
narcotics dealers use coded language “through everyday contact
[with] people in the street, through everyday contact with
informants, arrestees, police, just by speaking to people and
learning every day the new and upcoming terminology.” While he
gave the jury examples of words that were commonly used by drug
traffickers, he also explained how he relied on “the context of
the call” to translate the coded words being used in a
particular telephone call. Based on this record, we conclude
that the district court did not plainly err in conducting its
gatekeeping function under Rule 702 with respect to these
officers’ expert testimony.
With respect to Galloway’s challenge to the use of Special
Agent Karas and Detective Sokolowski as both fact witnesses and
expert witnesses, the district court adequately followed
established protocols. See Baptiste, 596 F.3d at 223-26;
Wilson, 484 F.3d at 278 n.5. After accepting both officers as
expert witnesses, the court emphasized to the jury that while
15
these witnesses would be permitted to give “opinions as to coded
language and methods of distribution,” it was still for the jury
to “accept, reject, or whatever in terms of whether or not you
accept that testimony or not.” The court further admonished the
prosecutor in the jury’s presence to “be careful that we
separate . . . lay testimony as a lay witness from the proffer
of any expert testimony.” And based on our review, the
government heeded this instruction.
At bottom, we conclude that the district court committed no
plain error that affected Galloway’s substantial rights.
The judgment of the district court is
AFFIRMED.
16