United States v. Baptiste

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 07-4493

NIGEL HUMPHREY JOHN BAPTISTE,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Richard D. Bennett, District Judge.

(1:06-cr-00171-RDB)

Argued: December 2, 2009

Decided: February 26, 2010

Before WILKINSON, GREGORY, and DUNCAN,

Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opin-

ion, in which Judge Wilkinson and Judge Gregory joined.

COUNSEL

ARGUED: Gary Proctor, LAW OFFICES OF GARY E.

PROCTOR, LLC, Baltimore, Maryland, for Appellant. John

Francis Purcell, Jr., OFFICE OF THE UNITED STATES

ATTORNEY, Baltimore, Maryland, for Appellee. ON

2 UNITED STATES v. BAPTISTE

BRIEF: Rod J. Rosenstein, United States Attorney, Balti-

more, Maryland, for Appellee.

OPINION

DUNCAN, Circuit Judge:

This is an appeal from a conviction and sentence on one

count of conspiracy to distribute and possess with intent to

distribute controlled substances in violation of 21 U.S.C.

§ 846, and four counts of possession with intent to distribute

cocaine and cocaine base in violation of 21 U.S.C.

§ 841(a)(1). Appellant Nigel Baptiste asserts that the district

court committed several errors during his jury trial. Con-

strained by our review for plain error, we affirm.1

1

Although represented by counsel on appeal, Baptiste filed a pro se sup-

plemental brief alleging ineffective assistance of counsel at trial. Claims

of ineffective assistance of counsel may be raised on direct appeal only

where the record conclusively establishes ineffective assistance. See

United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Otherwise, the

proper avenue for such claims is a 28 U.S.C. § 2255 motion filed with the

district court. See Massaro v. United States, 538 U.S. 500, 504-06 (2003)

(recognizing that "in most cases a motion brought under § 2255 is prefera-

ble to direct appeal for deciding claims of ineffective assistance" because

the trial record is "often incomplete or inadequate for [addressing such

claims on direct review,]" thereby risking the failure of "[e]ven meritori-

ous claims"); see also United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999).

Baptiste alleges, among other things, that trial counsel failed to effec-

tively represent him due to a conflict of interest resulting from counsel’s

prior representation in an unrelated matter of one of Baptiste’s co-

defendants, who pleaded guilty before trial. Our review of the record

shows that it does not conclusively establish any of the alleged grounds

for Baptiste’s ineffective assistance claim. Therefore, because the claim is

not properly before us, we do not address it as part of this appeal.

UNITED STATES v. BAPTISTE 3

I.

In the spring of 2005, a drug task force organized by the

Sheriff’s Department of Cecil County, Maryland, began a

large-scale investigation of a cocaine distribution ring cen-

tered in the small community of Winding Brook. The investi-

gating officers conducted twelve state-court authorized

wiretaps, targeting first the lower-level dealers and then pro-

ceeding up the distribution channel to several higher-level

traffickers. Through the wiretaps and related surveillance, the

officers identified an individual named Larry Brown as one of

the ring’s mid-level cocaine suppliers. The investigation then

focused on ascertaining Brown’s source of supply. In Novem-

ber 2005, the officers discovered that Brown’s supplier was

Baptiste. After monitoring Baptiste’s actions and telephone

calls, the officers determined that Brown and Baptiste were

regularly conducting kilogram-quantity cocaine transactions

together.

On January 2, 2006, following a meeting during which the

officers believed that Baptiste delivered one kilogram of

cocaine to Brown, the officers arrested Baptiste. At the time

of his arrest, Baptiste possessed six cellular telephones, two

of which he had been using to communicate with Brown.

Baptiste also possessed a driver’s license under a fictitious

name.

On May 11, 2006, Baptiste was indicted by a federal grand

jury on one count of conspiracy to distribute and possess with

intent to distribute controlled substances in violation of 21

U.S.C. § 846, and four counts of possession with intent to dis-

tribute cocaine and cocaine base in violation of 21 U.S.C.

§ 841(a)(1). Several other defendants were also indicted on

charges stemming from the Winding Brook investigation.

Only Baptiste and one codefendant, Lamar Ricks, elected to

proceed to trial; the rest pleaded guilty.

After jury selection but before the start of the trial, the

judge learned that some of the jurors had "expressed some

4 UNITED STATES v. BAPTISTE

feeling of intimidation with respect to people in the hallway

outside of [the] courtroom doing what is called staring them

down." J.A. 28. Once the court had reconvened after lunch,

the judge issued the following warning to the courtroom audi-

ence and the parties:

[The alleged staring] will absolutely not be tolerated.

No attendant at this trial will be permitted to stand

in the hallway here on the fourth floor. You will

either sit in the courtroom or you will go down to the

first floor and sit in the lobby area, in the couch area.

Is that understood by everybody in attendance here?

And if anybody disobeys that order by me, they will

be taken into custody by the U.S. Marshal and find

themselves on the sixth floor lockup. So that’s the

way it will be. You’re in this courtroom or you’re

downstairs in the first floor lobby. And the marshals

will make sure that there’s absolutely no effort by

anybody to try to intimidate a juror in this case.

J.A. 28–29. Significantly, the court asked both parties if they

had any questions. Neither did. The court then addressed

defense counsel:

And out of respect to defense counsel, I’m [not]

holding that against the defendants in any way,

shape or form, but this is not the wild west. You’re

in the United States District Court. You’re in federal

court and that kind of conduct will not be tolerated

by anybody who’s a witness at this case.

J.A. 29. The following day, Ricks entered a guilty plea, and

the courtroom became noticeably less crowded for the

remainder of the five-day trial.

The evidence presented at trial included testimony from

one of the police officers who arrested Baptiste. According to

the officer, at the time of his arrest Baptiste told him that "he

UNITED STATES v. BAPTISTE 5

was glad that he was finally arrested and that he could finally

stop looking over his shoulders." J.A. 423. Baptiste also

showed the officers a secret compartment in his vehicle which

he stated he had used in the past to smuggle cocaine. Another

officer testified that, after he informed Baptiste of his

Miranda rights, Baptiste volunteered that "he was supposed to

be involved in a 150 to 200-kilo deal the following day." J.A.

435. The evidence also included testimony from some of

Batiste’s coconspirators, one of whom testified that Baptiste

had been a source of cocaine for Brown for many years.

The bulk of the remaining evidence consisted of testimony

regarding the investigation of the conspiracy, including

descriptions of the surveillance conducted and analyses of

numerous wiretapped telephone calls among the coconspira-

tors. To elicit the purpose of the wiretaps and the context of

the calls themselves, the government proffered Detective

Kenneth Russell, who had been the lead investigator in the

case, as an expert witness.

When Russell first took the stand, the government sought

to lay the foundation for his expertise regarding "the manner

and means of drug trafficking." J.A. 63. In response to the

government’s foundation-laying questions, Russell indicated

that he had worked as a narcotics officer for approximately

nine years, that his job required him to work in close proxim-

ity with drug users on a daily basis, and that he had previously

testified as an expert regarding the manner and means of drug

trafficking. Russell also testified that, through his experience,

he was familiar with the street jargon associated with cocaine

trafficking.

After the government requested that Russell be qualified as

an expert, the court asked defense counsel if he wanted to voir

dire Russell regarding his qualifications to testify as an expert.

Counsel for the defense made no such indication. The court

then proceeded to qualify Russell as an expert, but reminded

defense counsel of his continuing ability to challenge Rus-

6 UNITED STATES v. BAPTISTE

sell’s testimony on cross-examination. The court also gave the

following cautionary instruction to the jury regarding Rus-

sell’s testimony:

Ladies and gentlemen, under the case law of the

United States Court of Appeals for the Fourth Circuit

which is the court directly above this court, it has

been established that there may be expert testimony

with respect to the method and means of drug pack-

aging and drug distribution as well as the use of

slang terms in terms of drug explanations. Having

said that, that just means that this witness has been

qualified as an expert whereas most times witnesses

are not permitted to give their opinions. One excep-

tion to that is in the area of expert opinion where a

witness is permitted to give his expert opinion. But

it’s for you to accept, reject or whatever in terms of

whether you accept that testimony or not and cer-

tainly, [defense counsel] can challenge certain opin-

ions in his cross-examination. But Mr. Russell has

been qualified, Detective Russell has been qualified

as an expert and is accepted as such by the Court and

so accordingly, he is permitted then to give his opin-

ion as an expert.

J.A. 63-64. This was the district court’s only jury instruction

as to Russell’s role in the proceedings.

Russell’s testimony throughout the trial followed a regular

pattern. The government would ask Russell if he "ha[d] an

opinion" about whether a particular phone call "relate[d] to

drug trafficking activity" and Russell would respond in the

affirmative. See, e.g., J.A. 101. He would then describe the

call’s content and import. At that point, the government

would play for the jury the recording of the call in question.

This pattern was repeated for numerous phone calls. Russell’s

testimony was interrupted by occasional testimony from other

officers who participated in surveillance stemming from a

UNITED STATES v. BAPTISTE 7

particular phone call. In these instances, Russell would leave

the witness stand and then return once the other officer fin-

ished testifying. A slightly longer interruption occurred near

the end of the trial when two of Baptiste’s coconspirators

offered testimony. Otherwise, the pattern of Russell’s testi-

mony remained largely the same throughout the trial.

Although the pattern of Russell’s testimony remained the

same, its content with respect to particular calls varied

slightly. Sometimes Russell merely described the call’s con-

tent, sometimes he opined about whether it concerned drug

distribution, and sometimes he translated code words. For

instance, the government at one point asked Russell to inter-

pret the code "2-3-5," which he interpreted to mean

"$23,500." J.A. 377–78. On some occasions, Russell would

also testify as to the surveillance activities conducted in con-

nection with the intercepted calls. Throughout Russell’s testi-

mony, the court’s involvement was limited to warning Russell

sua sponte at one point against improperly opining about a

coconspirator’s intent, and to sustaining several of defense

counsel’s objections unrelated to Russell’s dual-role as an

expert and fact witness. Defense counsel never requested

additional jury instructions from the court regarding Russell’s

dual-role testimony.

In its closing argument, the government sought to articulate

for the jury whether it would be foreseeable from Baptiste’s

perspective that the cocaine he sold to his underlings would

be ultimately turned into crack. To illustrate the concept of

foreseeability, the government provided the following anal-

ogy:

[L]et me give you an example of something that

might not be foreseeable. . . .

Now say we were charging here a case where Mr.

Baptiste was [sic], I’m charging him with terrorism.

Why? Because—we’re not going to charge him with

8 UNITED STATES v. BAPTISTE

terrorism. But because, for instance, maybe, maybe

because the terrorism is a conspiracy to blow up the

courthouse or something. He’s a cocaine dealer and

he sold cocaine to [a coconspirator] who’s a terrorist

and he used that money before he became a terrorist

and he used that money to fund a terrorist organiza-

tion and go blow up the courthouse. And we saw that

the evidence showed that the money came [from]

that, all came from cocaine that he bought from Mr.

Baptiste. So we’re charging Mr. Baptiste, not for

being a drug dealer, but being part of a conspiracy

to blow up a courthouse. Now that might not be fore-

seeable. And if I were arguing to you at that point,

well, it should be foreseeable that a cocaine dealer

should know that people he sells crack to may use

the profits to fund a terrorist organization, you would

be going I’m not so sure, I’m not so sure. That’s all

you have? That’s not what we’re saying. All we’re

saying is that you can find from the evidence that it’s

foreseeable that a person who sells powder [cocaine]

should expect that powder is going to be turned into

crack. That’s a decision you have to make.

J.A. 447–48. Neither defense counsel nor the court raised an

issue regarding the government’s analogy, and the govern-

ment proceeded with its closing argument.

The jury convicted Baptiste on all counts. Baptiste received

concurrent sentences of 300 months’ imprisonment on each of

the five counts. This appeal followed.

II.

Baptiste raises four distinct arguments on appeal. First, he

argues that the district court erred when it failed to voir dire

jurors following the alleged incident of jury intimidation. Sec-

ond, he asserts that the court erred in allowing Detective Rus-

sell to testify as an expert witness because Russell did not

UNITED STATES v. BAPTISTE 9

have a reliable methodology supporting his expert testimony.

Third, he argues that the court erred in allowing Russell to

testify as both an expert and a fact witness without establish-

ing any safeguards to prevent jury confusion about Russell’s

dual role. Finally, Baptiste asserts that the court erred in per-

mitting the prosecutor to include in his closing statement an

improper metaphor that involved Baptiste unwittingly funding

a terrorist act. We will consider each argument in turn.

Because Baptiste did not raise any of these issues at trial,

we review for plain error. See Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731–32 (1993). On plain-error

review, "‘[i]t is the defendant rather than the Government

who bears the burden of persuasion.’" United States v. Has-

tings, 134 F.3d 235, 240 (4th Cir. 1998) (quoting Olano, 507

U.S. at 734) (alterations in original). Accordingly, to succeed

on any one of his arguments, Baptiste must persuade us that

there was "an ‘error’ that [was] ‘plain’ and that ‘affect[ed]

substantial rights.’" Olano, 507 U.S. at 732 (quoting Fed. R.

Crim. P. 52(b)). With regard to the third element of that stan-

dard, Baptiste must show that the alleged error actually "af-

fected the outcome of the district court proceedings." Id. at

734. However, "[e]ven if the error is plain and affects sub-

stantial rights, . . . we [do] not exercise our discretion to cor-

rect the error ‘unless a miscarriage of justice would result or

the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings independent of the defen-

dant’s innocence.’" United States v. Johnson, 219 F.3d 349,

353 (4th Cir. 2000) (quoting United States v. Cedelle, 89 F.3d

181, 184 (4th Cir. 1996)) (last alteration in original).

Using this framework, we turn to consideration of Bapt-

iste’s contentions.

A.

Baptiste first argues that the court erred in failing to ade-

quately address the issue of juror intimidation. He asserts that,

10 UNITED STATES v. BAPTISTE

upon learning that jurors felt intimidated by stare-downs from

members of the crowd, the court was obligated under Remmer

v. United States, 347 U.S. 227 (1954), to conduct a voir dire

examination of the jurors. Remmer instructs: "In a criminal

case, any private communication, contact, or tampering

directly or indirectly, with a juror during a trial about the mat-

ter pending before the jury is, for obvious reasons, deemed

presumptively prejudicial . . . ." Id. at 229. We ordinarily

review a district court’s decision not to hold voir dire follow-

ing a jury intimidation allegation under an abuse of discretion

standard. United States v. Basham, 561 F.3d 302, 320 (4th

Cir. 2009). However, because Baptiste did not raise this issue

at trial, we review only for plain error.

As we have explained, "while a presumption of prejudice

attaches to an impermissible communication, the presumption

is not one to be casually invoked." Stockton v. Virginia, 852

F.2d 740, 745 (4th Cir. 1988). For that reason, we have held

that to trigger a Remmer presumption, the defendant bears the

initial burden of "‘establish[ing] both that an unauthorized

contact was made and that it was of such a character as to rea-

sonably draw into question the integrity of the verdict.’" Full-

wood v. Lee, 290 F.3d 663, 678 (4th Cir. 2002) (quoting

Stockton, 852 F.2d at 743.)

We first note that Baptiste made no effort in this case to

meet this threshold burden.2 But, even assuming without

deciding that the alleged stares were sufficient to constitute

2

We find unavailing Baptiste’s position that, although he failed to meet

his burden of establishing the Remmer presumption, the court should

nonetheless have sua sponte held voir dire. Baptiste cites no case law sug-

gesting that the district court has such a duty. As we have made clear, the

existence of such a presumption did not absolve Baptiste of his duty to

raise the matter. Further, even if such a sua sponte requirement could theo-

retically be triggered, the record before us does not contain facts that

unequivocally show that the contacts were of the sort that would automati-

cally require voir dire.

UNITED STATES v. BAPTISTE 11

unauthorized contact,3 there is no evidence on the record that

the alleged contact with the jury was such that it was likely

to influence the verdict. This alone would be sufficient to

reject Baptiste’s contention on this point. However, we note

that there is no evidence on the record that trial counsel ever

alleged that the communication would affect the verdict or

that voir dire was required. Therefore, because Baptiste did

not even attempt to trigger the Remmer prejudice presump-

tion, we cannot say that the district court erred, much less

plainly erred, in not responding to the situation by holding a

special voir dire.4

Furthermore, Baptiste has failed to show that the alleged

error affected his substantial rights as required by the third

3

We note that our sister circuits have disagreed on the issue of whether

stares alone can be considered "unauthorized contacts" for purposes of

Remmer. Compare United States v. Brown, 923 F.2d 109, 112 (8th Cir.

1991) (holding that "physical closeness, stares, and rebuffed efforts at con-

versation . . . are neither unique nor uncommon to public trials and do not

of themselves trigger the Remmer presumption), with United States v.

Rutherford, 371 F.3d 634, 643 (9th Cir. 2004) (finding stares by govern-

ment witnesses constitute unauthorized contacts). However, because we

find that Baptiste failed to show that any contact that occurred was such

that it would affect jury impartiality, we need not resolve this question

here.

4

Baptiste relies on Rutherford for the proposition that "stares" alone can

give rise to the Remmer presumption. 371 F.3d at 643. The contrast

between Rutherford and this case, however, provides a great example of

why Baptiste’s allegations are insufficient. In Rutherford, jurors com-

plained that government agents glared at them throughout the trial. The

agents in question were sitting behind the government attorneys during the

trial, consulted often with those attorneys in view of the jury, and served

as key witnesses for the government. The Rutherford court found particu-

larly significant the fact that the persons who had allegedly intimidated the

jurors were "government agents intimately associated with the prosecu-

tion." Id. at 643. By contrast, Baptiste has provided no evidence showing

that the people who allegedly intimidated the jury in this case were linked

in any way to him or to the government. It would therefore be mere specu-

lation for us to determine that the conduct prejudiced the jury against Bap-

tiste.

12 UNITED STATES v. BAPTISTE

Olano prong. To do so, Baptiste would have to show that the

court’s failure to conduct a special voir dire actually affected

the outcome of the trial. Olano, 507 U.S. at 734. Baptiste’s

assumption, however, that the stare-downs were somehow

attributed to him, and therefore turned the jury against him, is

based on pure speculation. There is no evidence in the record

as to who was responsible for the conduct in question. There

is also no indication that the people responsible were linked

to Baptiste. In fact, Baptiste alleges that those involved were

Ricks’s family members, who stopped attending the trial as

soon as Ricks pleaded guilty the day after the court issued its

warning. Baptiste does not explain why the jury would impute

the actions of Ricks’s family members to Baptiste. Therefore,

nothing on the record supports a conclusion that the intimida-

tion was somehow attributed by the jury to Baptiste to his det-

riment. Without a showing that the alleged intimidation

prejudiced Baptiste, we cannot find that the court’s failure to

conduct voir dire following the allegations of intimidation

affected his substantial rights. Accordingly, Baptiste has

failed to establish prejudice as required by Olano.

B.

Baptiste next argues that the court erred in allowing Russell

to testify as an expert witness. The admissibility of expert tes-

timony is governed by Federal Rule of Evidence 702. We

ordinarily "review for abuse of discretion the district court’s

decision to admit expert testimony under Federal Rule of Evi-

dence 702." United States v. Wilson, 484 F.3d 267, 273 (4th

Cir. 2007). However, because Baptiste failed to object at trial

to the court’s certification of Russell as an expert, our review

is for plain error. We therefore must determine whether the

district court plainly erred in finding that Russell’s testimony

complied with the requirements of Federal Rule of Evidence

702.

Federal Rule of Evidence 702 requires, among other things,

"that [expert] testimony . . . be the product of reliable princi-

UNITED STATES v. BAPTISTE 13

ples and methods." Fed. R. Evid. 702 advisory committee’s

note 2000. As we have noted, the district court has "‘broad

latitude’" in determining whether the expert’s methodology is

reliable. Wilson, 484 F.3d at 274 (quoting Kumho Tire Co.,

Ltd. v. Carmichael, 526 U.S. 137, 142 (1999)). Baptiste

argues that the district court erred in finding Russell’s meth-

odology sufficiently reliable.5 He asserts that Russell’s "pur-

ported methodology plainly does not pass muster under

Federal Rule of Evidence 702" because it consisted of inter-

preting coded conversations based on three "shaky bases . . .

[:](1) the defendants’ identities; (2) their behavior; and (3) the

repetition of certain words." Appellant’s Br. at 25.6

What Baptiste refers to as "shaky" methodology is very

similar to what we found to be sufficient methodology in Wil-

son. 484 F.3d at 275. There, a narcotics officer was allowed

to testify as an expert interpreting drug-related code language.

The officer explained his methodology as follows:

It all depends on the situation. I mean, there’s, obvi-

ously, there’s a lot of words to mean one thing. So

like I say, you take it into the context of what you’re

talking about. That’s how you determine. . . . It all

depends on the context of the call. You know, drug

dealers use coded language. And the reason that they

5

Baptiste does not challenge whether Russell was sufficiently qualified

to testify as an expert witness. Indeed, we have previously held that expe-

rienced narcotics officers are qualified to testify as expert witnesses

regarding drug trafficking, code interpretation, and similar matters. See,

e.g., Wilson, 484 F.3d at 275-76.

6

Although Baptiste argues that Russell offered "no particular methodol-

ogy" for his determination, he asserts that Russell’s testimony "suggests"

that he based his testimony on the three grounds specified above. Indeed,

although Russell did not specifically mention the word "methodology" in

his testimony, he did state that, based on his experience, he was familiar

with the street-level jargon associated with drug trafficking and that he

decoded conversations by examining them in context of other calls placed

between the suspects.

14 UNITED STATES v. BAPTISTE

do that is because they don’t want police involve-

ment or police to know what they’re talking about.

. . . I take the person who’s talking, the conversation.

I take what has this person, what’s the routine pat-

tern of this person before and the pattern after. And

that’s how I make my determination. . . . [W]hen you

hear [a] word time and time again . . . then there’s

a pattern that develops. And when that pattern devel-

ops, that ultimately shows you what they’re talking

about.

Id. at 275 (alterations in original). The Wilson court found the

officer’s methods to be sufficient to meet the requirements of

Rule 702. Id. at 276. The description in Wilson of acceptable

methodology is comparable to the methodology employed by

Russell as described by Baptiste, that is, using context and

repetition to determine the meaning of certain words. This

type of methodology is exactly what is contemplated by the

commentary to Rule 702 for a narcotics officer interpreting

coded language. As the advisory committee notes on Rule 702

explain:

[T]he principle used by the agent is that participants

in such transactions regularly use code words to con-

ceal the nature of their activities. The method used

by the agent is the application of extensive experi-

ence to analyze the meaning of the conversations.

Fed. R. Evid. 702 advisory committee’s note 2000 (quoted in

Wilson, 484 F.3d at 274-75). Because Russell’s approach to

decoding language is so similar to that which we found

acceptable in Wilson, and to that which is contemplated by the

commentary to Rule 702, we cannot say that the district court

plainly erred in finding that Russell’s methodology was suffi-

ciently reliable to allow him to testify as an expert.7

7

Further supporting our conclusion regarding the absence of prejudice,

we also note that many of Russell’s interpretations of coded conversations

were corroborated at trial by the testimony of actual participants to those

conversations.

UNITED STATES v. BAPTISTE 15

C.

Baptiste next argues that the court erred by failing to

employ safeguards to prevent jury confusion regarding Rus-

sell’s dual role as an expert and fact witness. As a result, Bap-

tiste argues, the jury gave undue weight to Russell’s factual

testimony and was confused as to when his testimony was

based on his expert opinion and when it was based on his fac-

tual recollections of the investigation.8 While we usually

review a court’s decisions regarding an expert’s testimony for

abuse of discretion, Wilson, 484 F.3d at 273, here we review

only for plain error because Baptiste failed to raise this issue

at trial.

We have previously recognized that while "such dual wit-

nesses could confuse the jury," dual-role testimony is accept-

able where "the district court took adequate steps . . . to make

certain that [the witness’s] dual role did not prejudice or con-

fuse the jury." Id. at 278 n.5. In Wilson, we found safeguards

sufficient where the court had the witness "testify first as a

fact witness" and also "issu[ed] a cautionary instruction to the

jury." Id. Unlike in Wilson, the court here did not have Rus-

sell take two separate trips to the stand, nor did it issue a cau-

tionary instruction specific to Russell’s dual role. We have yet

to consider the precise circumstance presented here, namely,

in which lay and expert witness testimony is presented simul-

taneously.

Those circuits that have considered simultaneous dual-role

testimony have generally found it to be properly admitted so

8

Baptiste also argues in passing that allowing Russell’s dual-role testi-

mony "resulted in his testifying to matters that were not appropriate as

expert or lay testimony." Appellant’s Br. at 30 (emphasis in original).

Whether or not this occurred, we fail to see how it could be a result of his

dual role as a lay and expert witness. Both lay and expert witnesses occa-

sionally venture into impermissible areas of testimony. We are uncon-

vinced that Russell’s dual role made him somehow especially likely to

give such testimony.

16 UNITED STATES v. BAPTISTE

long as the court implements adequate safeguards to prevent

juror confusion or jurors giving undue weight to the lay testi-

mony. The Seventh Circuit case of United States v. Farmer,

543 F.3d 363 (7th Cir. 2008) and the Sixth Circuit case of

United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006)

are illustrative of the lines that courts have drawn regarding

adequate safeguards.

The defendant in Farmer was charged with drug offenses.

At trial, a federal agent testified both to the alleged conduct

and to the meaning of code words in drug distribution. He

gave both lay and expert testimony during the same trip to the

witness stand, following a pattern much like that followed at

Baptiste’s trial.

The Farmer court noted four safeguards that the district

court implemented with regard to the agent’s dual-role testi-

mony. First, the district court gave a cautionary instruction to

the jury, reminding the jury that it could "give the testimony

whatever weight you think it deserves." Farmer, 543 F.3d at

371 (quotation marks and alterations omitted). Second,

defense counsel cross-examined the agent about his expert

opinion, "which further clarified the testimonial capacities for

the jury." Id. Third, the district court required the government

to establish a proper foundation for the witness’s expertise. Id.

at 370-71. Finally, "[t]he government . . . prefaced [the

agent’s] expert testimony by asking him to interpret the coded

language’s meaning ‘based on [his] expertise.’" Id. at 371

(last alteration in original). Without noting which safeguard

was most important, the Seventh Circuit concluded that the

district court had "adequately alleviated" any potential con-

cerns regarding juror confusion. Id.

By contrast, the Sixth Circuit found safeguards to be inade-

quate in Lopez-Medina. The only safeguard provided at trial

in Lopez-Medina was a cautionary instruction to the jury indi-

cating that the government agent’s testimony was not entitled

to any greater weight because of the agent’s dual role and that

UNITED STATES v. BAPTISTE 17

defense counsel could attack the agent’s credibility. 461 F.3d

at 744. On review, the Sixth Circuit also noted that the agent’s

testimony "lacked any clear demarcation between expert and

fact witness roles." Id.

The safeguards implemented at Baptiste’s trial fall some-

where between Farmer and Lopez-Medina. On one hand, the

district court ensured that the government laid the foundation

for Russell’s expert testimony. The court also instructed the

jury regarding Russell’s testimony, saying that "it’s for you to

accept, reject or whatever in terms of whether you accept that

testimony or not," and noted that defense counsel could chal-

lenge Russell’s opinions. J.A. 64. However, the government’s

questioning failed to demarcate between lay and expert testi-

mony, a consideration that both Farmer and Lopez-Medina

weighed heavily. See Farmer, 543 F.3d at 371; Lopez-

Medina, 461 F.3d at 744. Furthermore, defense counsel’s

cross-examination of Russell did little to contribute to the dis-

tinction between lay and expert testimony. Thus, we believe

that the district court could have done more to ensure that

Russell’s lay and expert testimony were demarcated more

clearly in order to prevent juror confusion and to prevent

jurors from giving undue weight to Russell’s lay testimony.

To call this error "plain" under Olano, however, requires a

finding that the error is "obvious" or "clear under current

law." 507 U.S. at 734. Given that our circuit has not spoken

directly on this issue and that the facts in the present case

place it in a gray area of the law as applied by other circuits,

we cannot say that the error is obvious or clear at this time.9

9

Although we find that the error was not plain under current law, we

note that district courts should take steps to ensure that there is a clear

demarcation in the jury’s mind between a witness’s lay and expert roles.

This may be accomplished, for example, by cautionary warnings or

instructions, by requiring the witness to take separate trips to the stand in

each capacity, or by ensuring that counsel makes clear when he is eliciting

lay versus expert testimony. While the means of ensuring the demarcation

between the lay and expert roles of the witness lie within the discretion of

the district court, jurors should be made to understand that they may not

give the witness’s lay testimony additional weight simply because of his

dual-role as an expert.

18 UNITED STATES v. BAPTISTE

Furthermore, Baptiste has failed to show that the alleged

jury confusion affected his substantial rights as required by

the third Olano prong. Baptiste’s brief cites only two exam-

ples of situations where the government failed to "delineate

when it was eliciting fact testimony and when it was eliciting

expert opinions." Appellant’s Br. at 29. We find both exam-

ples unavailing.

The first example is a situation where, in the middle of

Russell’s expert testimony regarding a call, the government

attorney asked him, "By the way, what was the weather like

that night?," to which Russell responded "It was freezing

rain." J.A. 378. We fail to see, and Baptiste does not explain,

how this statement about the weather would confuse the jury

in such a way as to affect Baptiste’s substantial rights.

The second example is one in which Russell agreed with

counsel that a call that had just been played to the jury was

a "sort of [‘]where are you[’] call," J.A. 268, and then pro-

ceeded to testify about the surveillance related to that call. In

that call, Larry Brown, one of Baptiste’s coconspirators,

asked Baptiste to pick him up, Baptiste asked Brown to con-

firm where he was, and Brown responded that he was at the

Shop Rite store. Because of the call’s straightforward mean-

ing, Russell’s agreement that it was indeed a "where are you

call" is hardly a translation of the call for which his expertise

would be required. In fact, it seems to be simply factual back-

ground preceding his description about the surveillance sur-

rounding the call, which confirmed that Baptiste picked

Brown up at a Shop Rite store. Therefore, this is not a clear

example of Russell "seamlessly transitioning from a transla-

tion of calls to an account of specific surveillance in the case",

Appellant’s Br. at 30, in a way that would confuse the jury

and prejudice Baptiste.

Furthermore, Baptiste does not assert that Russell’s factual

testimony in either of these examples was incorrect or inaccu-

rate. Therefore, even if the jury had assigned greater credibil-

UNITED STATES v. BAPTISTE 19

ity to Russell’s factual testimony due to his dual role, it would

not have been misled as to the facts.10

Accordingly, because Baptiste has failed to show that the

alleged lack of clear distinction between Russell’s role as a

fact witness and his role as an expert witness actually affected

the outcome of the trial, he has not shown the prejudice neces-

sary to support a finding of plain error.

D.

Baptiste’s final allegation focuses on the portion of the

government’s closing argument in which counsel used a meta-

phor involving Baptiste’s hypothetical role in unknowingly

helping to fund a terrorist act. Baptiste argues that the remarks

confused the jury into thinking that Baptiste was a dangerous

man linked to terrorism and therefore deprived Baptiste of his

"right to a fair, unbiased jury." Appellant’s Br. at 20. Baptiste

therefore asserts that the court erred in allowing such remarks.

Generally, "[t]he district court is afforded broad discretion in

controlling closing arguments and is only to be reversed when

there is a clear abuse of its discretion." United States v.

Rhynes, 196 F.3d 207, 236 (4th Cir. 1999), vacated in part on

other grounds, 218 F.3d 310 (4th Cir. 2000) (en banc). How-

ever, because Baptiste did not object to the closing argument

at trial, we review for plain error.

We have found that, "[w]ith respect to claims of prosecu-

torial misconduct, an appellant must show that the remarks

were improper and that they ‘prejudicially affected the defen-

10

We also note that Russell’s factual testimony in the second example

related only to surveillance of Batiste and Brown conducted by Sergeant

Gerald Widdoes and Sergeant Timothy McDonald. Both Widdoes and

McDonald were witnesses in the trial, and Widdoes testified as to the sur-

veillance on that day. Therefore, had there been any inaccuracies in Rus-

sell’s testimony, Batiste’s counsel could have easily resolved that

confusion by cross-examining Widdoes and McDonald about the surveil-

lance. This would mitigate any potential prejudice.

20 UNITED STATES v. BAPTISTE

dant’s substantial rights so as to deprive the defendant of a

fair trial.’" United States v. Adam, 70 F.3d 776, 780 (4th Cir.

1995) (quoting United States v. Mitchell, 1 F.3d 235, 240 (4th

Cir. 1993)). In determining whether improper remarks require

reversal we consider:

(1) the degree to which the prosecutor’s remarks

have a tendency to mislead the jury and to prejudice

the accused; (2) whether the remarks were isolated

or extensive; (3) absent the remarks, the strength of

competent proof introduced to establish the guilt of

the accused; (4) whether the comments were deliber-

ately placed before the jury to divert attention to

extraneous matters[;] . . . (5) whether the prosecu-

tor’s remarks were invited by improper conduct of

defense counsel[;] . . . and (6) whether curative

instructions were given to the jury.

United States v. Wilson, 135 F.3d 291, 299 (4th Cir. 1998)

(internal citations omitted). The ultimate question "is whether

the prosecutors’ comments ‘so infected the trial with unfair-

ness as to make the resulting conviction a denial of due pro-

cess.’" Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)).

As a threshold matter, we are unconvinced that the prosecu-

tor’s statements were improper. The government’s apparent

purpose in posing the hypothetical was to provide the jurors

with an example of unforeseeable criminal activity so as to

give them a baseline for determining whether the actual crimi-

nal activity being charged—distribution of crack by Baptiste’s

underlings—was, in fact, foreseeable to Baptiste. The remarks

made clear that the government was not actually alleging that

Baptiste was funding terrorism; in fact, it was asserting the

contrary. At the outset of the metaphor the government stated:

"[L]et me give you an example of something that might not

be foreseeable. . . . Now say we were charging here a case

UNITED STATES v. BAPTISTE 21

where Mr. Baptiste was [sic], I’m charging him with terror-

ism. Why? Because—we’re not going to charge him with ter-

rorism." J.A. 447. The government then proceeded to pose a

hypothetical situation in which Baptiste sold cocaine to Larry

Brown and Brown then used the cocaine proceeds to fund a

terrorist organization, unbeknownst to Baptiste. The govern-

ment gave that as an example of something that Baptiste

could not have foreseen. It then contrasted it with something

that it alleged Baptiste could have foreseen -– that someone

would use powder cocaine to make crack.

Nothing in the government’s remarks hints at all at the fact

that Baptiste was involved in terrorism. The government did

not allege, as Baptiste claims, that Baptiste was "involved in

a terrorist plot to blow up a courthouse." Appellant’s Br. at 18

(emphasis in original). In fact, even as part of the metaphor

the government held Baptiste harmless for the unforeseeable

terrorist acts of Larry Brown. Therefore the metaphor was

actually an example in which Baptiste could not be held

responsible for someone else’s dangerous acts in which he

played no role. Even though we agree that the specter of ter-

rorism should not be invoked lightly, we do not see how the

statement could be interpreted as attributing acts of terrorism

to Baptiste. We therefore cannot agree with Baptiste that the

metaphor was "undoubtedly improper." Id.

Furthermore, even if the prosecutor’s remarks in this case

had been improper, we find that under the relevant Wilson

factors discussed above, Baptiste has failed to show that the

comments prejudicially affected his substantial rights so as to

deprive him of a fair trial. First, as we explained above, we

do not think that the metaphor was such that it would mislead

the jury into thinking that Baptiste was somehow dangerous

or involved in terrorism. Second, the comment constituted

only a very minor part of the government’s otherwise unob-

jectionable closing argument—fourteen lines out of a thirty-

six page transcript. Third, the record contains ample evidence

against Baptiste absent the remarks. This evidence includes a

22 UNITED STATES v. BAPTISTE

multitude of coded, drug-related telephone calls between Bap-

tiste and his coconspirators, surveillance corroborating the

meanings of those phone calls, Baptiste’s statements to offi-

cers regarding his involvement in cocaine trafficking, and

information from a cooperating coconspirator confirming that

Baptiste was Larry Brown’s cocaine source for many years.

Fourth, there is no indication that the government’s use of the

metaphor was in any way intended to divert the attention of

the jury or prejudice Baptiste. Instead, it is clear that the meta-

phor was intended to illustrate the concept of foreseeability,

which was part of the government’s case. Finally, although

the comments were not invited by the defense, and the court

did not give a curative instruction, we find these factors of

minimal relevance in light of the other considerations dis-

cussed here. Weighing all of the relevant factors, we find that

the remarks did not affect Baptiste’s substantial rights.

Accordingly, because we find that the remarks were not

plainly inappropriate and did not, in any event, affect Bapt-

iste’s substantial rights, we hold that the district court did not

plainly err in allowing the prosecutor’s closing argument.

III.

For the reasons stated above, we reject Baptiste’s allega-

tions of trial mismanagement on the part of the district court,

and his conviction is therefore

AFFIRMED.