United States v. Wilson ( 2023 )

Case: 22-60286 Document: 00516740088 Page: 1 Date Filed: 05/05/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 5, 2023
No. 22-60286
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Samuel Wilson, III,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:19-CR-96-6
______________________________
Before Higginbotham, Southwick, and Willett, Circuit Judges.
Per Curiam:*
A jury convicted Samuel Wilson, III, of conspiracy to possess with
intent to distribute methamphetamine and marijuana, possession with intent
to distribute marijuana, and possession of firearms by a felon. Wilson alleges
the district court erred in not first qualifying a law enforcement witness as an
expert before allowing him to testify about the meaning of slang words used
in the conspirators’ secretly recorded conversations. We find any error was
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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harmless. Wilson also argues there was error in calculating his Guidelines
range. No error occurred, and we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Samuel Wilson, III, was charged by a superseding indictment with a
multitude of crimes, including, as relevant here, conspiracy to possess with
intent to distribute methamphetamine and marijuana, possession with intent
to distribute marijuana, and possession of firearms by a convicted felon.
Wilson pled not guilty and proceeded to trial.
In 2017, agents with the Drug Enforcement Agency (“DEA”) and the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) — as well
as other law enforcement officers — began investigating Jeremy Mairidith
for drug trafficking in Tupelo, Mississippi. During these undercover
purchases, Mairidith used slang terms such as “three letter,” “cream,” and
“ice” when referring to methamphetamine and used other slang terms when
referring to marijuana and heroin.
In November 2018, agents obtained court authorization to wiretap
Mairidith’s telephones, and Mairidith emerged as a vital, direct link to the
Gangster Disciple drug trafficking organization, and Wilson emerged as a
participant.
Considerable evidence was admitted at trial to support the charges
against Wilson. We will describe only the evidence relevant to the issues on
appeal. Special Agent Frank Elliott, a 32-year veteran of the ATF, testified
that he led the investigation of Wilson and the Mairidith drug trafficking
organization, that he was present every day in the wiretap room, and that he
had heard Mairidith and Wilson speak frequently. Elliott testified that, in
light of his review of the conversations, he concluded Wilson and Mairidith
were conspiring to purchase and sell methamphetamine and marijuana. At
the beginning of Elliott’s testimony regarding the calls, defense counsel
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objected to Elliott’s interpretation. The prosecutor responded that he was
not asking Elliott to interpret the calls, and the district court allowed Elliott’s
testimony. Later, during the course of Elliott’s testimony, defense counsel
stated he had “a continuing objection to opinion testimony, interpretation,
that sort of thing[.]” The district court overruled the objection, stating it
would allow Elliott to testify as to what he thought he heard on the taped
conversations.
Elliott testified regarding intercepted calls between Mairidith and a
person called “Jug,” also known as Dmitri Kimble. During two calls, Kimble
told Mairidith he was staying at a hotel in Tupelo with a “half a pound.”
Kimble told Mairidith that “Burn One was going to come get some” —
which was an alias for Wilson. A few days later, Elliott was monitoring the
wiretap when he heard Wilson ask Mairidith if he got “right on the cream
side,” and Mairidith responded, “Yes . . . [f]rom Jug.”
The jury found Wilson guilty of conspiring to distribute
methamphetamine and marijuana (count one), possessing with intent to
distribute marijuana (count seven), and being a felon in possession of a
firearm on November 28, 2018 (count 11). The district court sentenced
Wilson to 262 months on the conspiracy charge; 120 months on the
possession with intent to distribute charge, and 120 months on the felon in
possession charge, served concurrently; and concurrent supervised release
terms of five years, four years, and three years, respectively. Wilson filed a
timely notice of appeal.
DISCUSSION
On appeal, Wilson contends the district court erred in admitting
Elliott’s testimony related to his interpretations of drug-code jargon and
other discussions he overheard during the numerous intercepted calls
between Wilson and his coconspirators. Wilson argues that Elliott, who was
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not properly offered or qualified as an expert witness, nevertheless gave
expert testimony. Wilson notes that in a pretrial disclosure, the Government
designated Elliott as an expert in narcotics and firearms investigations, not
drug terminology.
Relevant to this appeal, Wilson argues that Elliott improperly testified
as an expert when he explained that “gas” means “marijuana, high-grade
marijuana” and that “cream” means methamphetamine.
It is questionable whether Wilson preserved his present evidentiary
argument for appeal. We review properly “preserved objections regarding
the admission of expert or lay testimony for abuse of discretion, subject to
harmless error analysis.” United States v. Haines, 803 F.3d 713, 726 (5th Cir.
2015). On the other hand, if a defendant’s “objection during trial is different
from the theory he now raises on appeal,” plain error review applies. United
States v. Green, 324 F.3d 375, 381 (5th Cir. 2003).
We need not decide the appropriate standard of review, because
Wilson’s argument fails under either standard. We explain.
I. Expert versus lay witness testimony
A witness who is properly qualified by the district court as an expert
may state expert opinions if, among other requirements, “the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue.” Fed. R. Evid.
702(a). A lay witness may offer an opinion so long as it is “(a) rationally
based on the witness’s perception; (b) helpful to clearly understanding the
witness’s testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule
702.” Fed. R. Evid. 701.
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“The distinction between lay and expert witness testimony is that lay
testimony results from a process of reasoning familiar in everyday life, while
expert testimony results from a process of reasoning which can be mastered
only by specialists in the field.” United States v. Yanez Sosa, 513 F.3d 194,
200 (5th Cir. 2008) (quotations marks, alterations, and citations omitted).
Drug-code terminology is “a specialized body of knowledge, familiar only to
those wise in the ways of the drug trade, and therefore a fit subject for expert
testimony.” United States v. Griffith, 118 F.3d 318, 321 (5th Cir. 1997). Even
so, law enforcement officers may testify as lay witnesses about their opinions
based upon first-hand observations in the specific case or the investigation at
issue. See United States v. Hill, 63 F.4th 335, 356–57 (5th Cir. 2023).
In summarizing these distinctions, we have explained that a particular
drug enforcement agent’s testimony can fall into broad categories: “(1) the
‘coded’ meaning of specific words and terms commonly used in the drug
trade; [and] (2) the meaning of specific words and terms used by the
particular defendants in th[e] case.” Haines, 803 F.3d at 728. “[T]estimony
in category (1) was permissible expert testimony [and] testimony in category
(2) was not permissible as expert testimony, but was admissible as lay opinion
testimony,” id., based upon the agent’s “personal knowledge of the
investigation,” id. at 730.
To the extent Elliott’s interpretations of the drug-related jargon relied
upon his perceptions from his involvement in this case, the testimony is lay
opinion testimony. See United States v. Miranda, 248 F.3d 434, 441 (5th Cir.
2001). To the extent Elliott’s testimony was based upon his experience or
general knowledge of terms employed by drug traffickers, it is indicative of
expert testimony. See Griffith, 118 F.3d at 321–22. Even if Elliott testified in
part as an expert without first being properly qualified as an expert by the
district court, evidentiary rulings are subject to harmless error review.
United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011).
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As we indicated above, the potential expert opinion testimony from
Elliott was only that he explained that “gas” means “marijuana, high-grade
marijuana” and that “cream” means methamphetamine. To understand the
effect of that testimony, we examine the permissible lay testimony by Elliott
or other witnesses that supported that marijuana and methamphetamine
were the drugs involved in the offense:
 Wilson delivered, at Mairidith’s request, eight ounces of
methamphetamine to Stefanie Johnson, a member of the drug
trafficking organization.
 Wilson later returned to Johnson’s house for payment after she sold
the drugs.
 Johnson and Jason Henson, a DEA Task Agent, testified that
“cream” refers to methamphetamine and that Mairidith routinely
used that slang term and others when referring to methamphetamine
to avoid detection by law enforcement.
 Recorded conversations revealed Wilson and Mairidith discussed
cream, weed, and dope.
 After Wilson first was arrested, agents searching his trailer and vehicle
discovered three firearms, which form the basis of the felon in
conviction charge; packages containing 81.6 grams and 114.7 grams of
marijuana; and digital scales.
Admission of improper expert testimony will be harmless when that
testimony is overwhelmed in its potential effect by other incriminating
evidence. See United States v. Setser, 568 F.3d 482, 495 (5th Cir. 2009).
Here, what may have been expert testimony was quite limited, while other
evidence of the kind of drugs involved in the conspiracy was substantial and
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unchallenged. Any errors made by the district court in admitting Elliott’s
testimony under Rule 702 were harmless.2
II. Rule 403 standard
Wilson also argues error under Federal Rule of Evidence 403. That
rule states a court “may exclude relevant 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.
Although Wilson relies on Rule 403 as an additional basis for
excluding Elliott’s testimony, he cites little caselaw in support of his Rule 403
argument. He primarily reiterates that Elliott’s dual-role testimony confused
the jury and prejudiced his case because the district court failed to
differentiate between his testimony as being that of an expert or lay witness.
We find this argument fails because Elliott was not testifying as an expert,
and to the extent he was, it was harmless.
In support of his Rule 403 argument, Wilson identifies United States
v. Haines, in which this court noted that mixed testimony can be grounds for
prejudice under Rule 403. 803 F.3d at 730–31. In Haines, the court
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2
Wilson also asserts that other portions of Elliott’s testimony were inadmissible
because he improperly interpreted the motive behind certain actions and improperly
opined as to the significance of certain statements. In that regard, Wilson identifies
testimony where Elliott interpreted certain wiretapped conversations to mean that Wilson
and Mairidith were purchasing drugs and planned to murder two confidential informants;
where Elliott opined on Wilson’s emotions; where Elliott interpreted the term “hit a lick”
to be drug-related; and where Elliott opined that another conversation showed Mairidith
had participated in past criminal activity. We see no error. “[A]gents testifying as lay
witnesses may testify about the significance of particular conduct or methods of operation
unique to the drug business.” United States v. Staggers, 961 F.3d 745, 761 (5th Cir. 2020)
(quotation marks and citation omitted). Thus, to the extent the testimony falls into this
category of acceptable testimony, the district court did not err by admitting it. See id.7
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determined that an agent’s dual-role testimony, though potentially confusing
to the jury and admitted in error, was harmless “because the record — even
excluding those portions of [the agent’s] testimony in which his role was
unclear — [was] replete with evidence” that supported the defendant’s
conviction. Id. at 732–33. That is precisely what we have here. Thus,
Wilson’s Rule 403 argument fails.
III. Sentencing
Finally, Wilson argues the district court erred in determining his base
offense level. This court reviews the district court’s interpretation and
application of the Sentencing Guidelines de novo and its factual findings for
clear error. United States v. Barfield, 941 F.3d 757, 761 (5th Cir. 2019). The
district court’s drug quantity calculation is a factual determination reviewed
for clear error. Id. at 761–62. “A factual finding is not clearly erroneous if it
is plausible in light of the record as a whole.” Id. at 761 (quotation marks and
citation omitted).
A district court determines the advisory Guidelines sentence for drug
offenses based on the quantity of drugs involved in the offense. Id. at 762; see
U.S.S.G. § 2D1.1. In drug trafficking cases, that amount may include
quantities involved in the defendant’s relevant conduct, and a district court
may consider estimates of drug quantities where “the amount seized does
not reflect the scale of the offense.” Barfield, 941 F.3d at 762 (quotation
marks and citation omitted).
Under Section 1B1.3(a)(1)(B) of the Guidelines, relevant conduct “in
the case of a jointly undertaken criminal activity” includes “all acts and
omissions of others that were” “within the scope” of the joint activity, “in
furtherance” of it, and “reasonably foreseeable” to the defendant. Thus, for
cases involving controlled substances, a defendant is accountable for all
substances with which he was “directly involved” and for substances
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“involved in transactions carried out by other participants, if those
transactions were within the scope of, and in furtherance of, the jointly
undertaken criminal activity and were reasonably foreseeable in connection
with that criminal activity.” § 1B1.3, cmt. n.3(D); see United States v.
Johnson, 14 F.4th 342, 345 (5th Cir. 2021), cert. denied, 142 S. Ct. 928 (2022).
Here, the base offense level was determined by the amount of
methamphetamine and marijuana involved in the entire offense. An
intercepted call between Mairidith and Kimble indicated that they negotiated
the quantity and price of the methamphetamine and later met to complete
the transaction, and that the purchase was reported to Wilson. Because
Wilson offered no evidence showing the information was unreliable, it was
reasonable for the district court to infer from these facts that Wilson should
be held accountable for the disputed drug quantity. The “district court is
permitted to draw reasonable inferences from the facts.” United States v.
Muniz, 803 F.3d 709, 712 (5th Cir. 2015). There was no clear error regarding
the district court’s drug quantity calculation.
AFFIRMED.
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