United States v. Gerald Eiland

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 4, 2013 Decided December 27, 2013

Nos. 07-3131 & 11-3001

UNITED STATES OF AMERICA,

APPELLEE

v.

GERALD W. EILAND,

FREDERICK MILLER,

APPELLANTS

Appeals from the United States District Court

for the District of Columbia

(No. 04cr00379-01)

(No. 04cr00379-02)

Eric H. Kirchman argued the cause for appellant Gerald

W. Eiland. With him on the briefs was Kenneth M. Robinson.

Dennis M. Hart argued the cause and filed the briefs for

appellant Frederick Miller.

Frederick A. Miller, pro se, filed the briefs for appellant

Frederick Miller.

Katherine M. Kelly, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Ronald C.

Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne

2

Grealy Curt, and John K. Han, Assistant U.S. Attorneys.

Mary B. McCord, Assistant U.S. Attorney, entered an

appearance.

Before: GARLAND, Chief Judge, and ROGERS and

BROWN, Circuit Judges.

Opinion for the Court by Circuit Judge BROWN.

BROWN, Circuit Judge: Appellants, Gerald Eiland and

Frederick Miller, were convicted of various narcotics-related

offenses. The government’s evidence at trial showed that

Eiland and Miller organized an extensive drug ring in the

Washington, D.C. area that had ties across the country. After

almost a year and a half of investigation including numerous

wiretaps, the government indicted twenty-one defendants.

Many of the defendants pled guilty. The government brought

the remaining defendants to trial in two groups. This appeal

results from the second of these trials. We also heard an

appeal from the first trial, United States v. Miller, Nos. 07-

3135 & 07-3139, and we have disposed of those issues in

another opinion released today.

Eiland and Miller allege numerous errors affecting the

second trial. Although we reject most of appellants’

arguments, we vacate Miller’s insufficiently supported

conviction for his participation in a continuing criminal

enterprise and remand for resentencing. We also vacate the

fine imposed on Eiland by the district court and remand for

reconsideration of that portion of Eiland’s sentence.

I. Facts and Procedural History

Our opinion in the companion case sets out the factual

and procedural background of this case in some detail. We

3

need not retell that story here, and we limit our discussion to

facts relevant to the second trial and this appeal.

Sometime in 2003, the Safe Streets Task Force of the FBI

began investigating a drug trafficking ring in Southeast

Washington, D.C. The evidence revealed a wide-ranging

drug operation headed by Eiland and Miller. The operation

dealt in heroin, cocaine, cocaine base, and phencyclidine

(PCP) and had ties around the country and to foreign

travelers. On February 13, 2004, the task force applied for

and was granted court authorization to wiretap Miller’s cell

phone. The court approved two extensions and the wiretap

lasted three months. In April, the district court permitted the

task force to tap Eiland’s three phones and approved an

extension for one of those phones. FBI Agent Daniel Sparks

provided supporting affidavits for each of the initial wiretap

and extension applications. Although the conspirators often

used untapped payphones to discuss their illicit activities and

spoke in guarded language while on the wiretapped phones,

the FBI obtained substantial evidence from the wiretaps.

Following a “reverse sting” operation, the FBI arrested Eiland

and Miller in August 2004. The government charged twenty-

one defendants in a 100-count superseding indictment. The

defendants were charged with conspiring to distribute heroin,

cocaine, cocaine base, and PCP between 1999 and 2004 in

Virginia, the District of Columbia, and Maryland.

The defendants who did not plead guilty were separated

into two groups for trial. Prior to the first trial, many of the

defendants, including Eiland and Miller, moved to suppress

the wiretap evidence because, they argued, the authorization

violated the wiretap statute, 18 U.S.C. § 2510 et seq. The

district court denied defendants’ motions. United States v.

Eiland, 398 F. Supp. 2d 160 (D.D.C. 2005). The government

4

relied heavily on the more than 14,000 recorded telephone

conversations at both trials.

The first trial group, consisting of Frederick Miller,

Timothy Thomas, and Corey Moore, went to trial in March

2006. The trial lasted two months, and the jury deliberations

lasted a month. Thomas was convicted of most charges,

including conspiring to commit a narcotics offense (cocaine)

and RICO conspiracy. Moore was acquitted of all charges.

Miller was found guilty of twenty-one counts of using a

communication device to facilitate a drug-trafficking offense.

The jury acquitted Miller of a count of PCP distribution and

several counts of communication offenses. The jury was

hung on the remaining counts against Miller, and the judge

declared a mistrial on those.

Following the mistrial, the government moved to join

Miller to the second group of defendants, scheduled to go to

trial in October 2006. Miller opposed the motion because his

court-appointed counsel from the first trial, Brian McDaniel,

was unavailable. Rather than delay the trial of the entire

second group or hold a separate trial for Miller, the court

appointed Thomas Saunders to represent Miller.

On October 3, 2006, the second group of defendants—

Robert Bryant, Alvin Gaskins, Gerald Eiland, and Frederick

Miller—proceeded to trial. On November 15, 2006, the jury

acquitted Bryant, the alleged PCP supplier for the conspiracy,

of all charges. The jury found Gaskins guilty of narcotics

conspiracy with regard to heroin only and acquitted Gaskins

of all other charges. This court later reversed Gaskins’s

conviction as resting upon insufficient evidence. United

States v. Gaskins, 690 F.3d 569 (D.C. Cir. 2012). The jury

found Eiland guilty of narcotics conspiracy (Count 1) with the

object of distributing heroin, cocaine, and cocaine base, but

5

not PCP; RICO conspiracy (Count 2); continuing criminal

enterprise (CCE) (Count 3); attempt to possess with intent to

distribute heroin (Count 4); and three counts of unlawful use

of a communication facility. The jury found Eiland not guilty

of six other communications counts and an accessory to

murder charge. Miller was convicted of narcotics conspiracy

(Count 1) with regard to heroin, cocaine, and cocaine base,

but not with regard to PCP; RICO conspiracy (Count 2); CCE

(Count 3); attempt to possess with intent to distribute heroin

(Count 5); and three counts of unlawful use of a

communication facility. The jury found Miller not guilty of

attempt to possess with intent to distribute PCP and five

additional communications counts.

Thus, the jury found the government had proved Miller

and Eiland conspired to traffic heroin, cocaine, and cocaine

base and committed the racketeering acts and CCE predicate

offenses involving those same narcotics. But the jury found

the government had not proved the charged offenses and acts

involving the trafficking of PCP.

At appellants’ sentencing hearings, the district court

dismissed the narcotics conspiracy charges against Miller and

Eiland as lesser-included offenses of the CCE counts. The

court sentenced each to concurrent sentences of life

imprisonment for RICO conspiracy and CCE, and lesser

terms of imprisonment on the other counts. The court

imposed a $7,000 fine on Miller for Counts 2 and 3.

Sentencing (Miller) Tr. at 7, Nov. 28, 2007. 1 It imposed a

1

The written judgment form for Miller states that the fine is

imposed on Counts 1 and 2. This appears to be a mistake because

the district court vacated Count 1 (narcotics conspiracy).

Furthermore, “the pronouncement of the sentence constitutes the

judgment of the court” and “the written judgment form is a nullity

6

$7,000 fine on Eiland for Count 1. Sentencing (Eiland) Tr. at

11, Nov. 28, 2007. Eiland and Miller filed timely notices of

appeal. This court decided to hear the appeal arising out of

the second trial separately from the appeal of the first trial. 2

II. Admissibility of Wiretap Evidence

Eiland and Miller cite several reasons the wiretap

evidence should have been suppressed. We address these

arguments in turn.

An application for an order authorizing a wiretap must

contain certain information, including “a full and complete

statement of the facts and circumstances relied upon by the

applicant, to justify his belief that an order should be issued.”

18 U.S.C. § 2518(1). A district court may authorize a wiretap

after assessing both probable cause and necessity and finding:

(1) probable cause exists to believe that an individual has

committed or is about to commit one of certain

enumerated offenses; (2) probable cause exists to believe

that particular communications concerning that offense

will be obtained through an interception; (3) normal

investigative procedures have been tried and have failed

or reasonably appear to be unlikely to succeed if tried;

and (4) probable cause exists to believe that the

communication facility sought to be wiretapped is being

used, or is about to be used, in connection with the

commission of the offense.

United States v. Carter, 449 F.3d 1287, 1292 (D.C. Cir. 2006)

(citing 18 U.S.C. § 2518(3)). An initial wiretap may be

to the extent it conflicts with the previously pronounced sentence.”

United States v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010).

2

Miller is also a party in the related appeal from the first trial.

7

approved for a maximum of thirty days and may be extended

for additional thirty-day periods upon a finding of continued

probable cause and necessity. 18 U.S.C. § 2518(3), (5).

The probable cause standard for the wiretap statute is the

same as the standard for a search warrant. See United States

v. Fairchild, 189 F.3d 769, 775 (8th Cir. 1999); United States

v. Diaz, 176 F.3d 52, 110 (2d Cir. 1999); United States v.

Armendariz, 922 F.2d 602, 608 (10th Cir. 1990); United

States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990). The

determination requires the authorizing court “to make a

practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before [it], including

the ‘veracity’ and ‘basis of knowledge’ of persons supplying

hearsay information, there is a fair probability that contraband

or evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983).

The necessity requirement is satisfied if “traditional

investigative techniques have proved inadequate to reveal the

operation’s full nature and scope.” United States v. Becton,

601 F.3d 588, 596 (D.C. Cir. 2010). The necessity

requirement prevents law enforcement from resorting to

wiretapping where traditional investigative techniques would

suffice. Carter, 449 F.3d at 1293. “[A] court will give close

scrutiny to a contested wiretap application and will reject

generalized and conclusory statements that other investigative

procedures would prove unsuccessful.” Id. But because the

necessity requirement was not intended “to foreclose

electronic surveillance until every other imaginable method of

investigation has been unsuccessfully attempted,” the

government need only show “that other techniques are

impractical under the circumstances and that it would be

unreasonable to require pursuit of those avenues of

investigation.” Id.

8

In evaluating appellants’ objections to the district court’s

denial of their motions to suppress, we review the district

court’s legal conclusions de novo and its factual findings for

clear error. United States v. Johnson, 437 F.3d 69, 71 (D.C.

Cir. 2006). A reviewing court gives deference to the

authorizing court’s determinations of probable cause and

necessity. United States v. Glover, 681 F.3d 411, 419–20

(D.C. Cir. 2012); Johnson, 437 F.3d at 71. We review the

court’s necessity determination for abuse of discretion.

United States v. Sobamowo, 892 F.2d 90, 93 (D.C. Cir. 1989).

We “do[] not typically give a second layer of deference to a

district court’s assessment” of the authorizing court’s

determinations. Glover, 681 F.3d at 420.

A.

Appellants first argue the initial application for a wiretap

on Miller’s phone was inadequate because Agent Sparks’s

supporting affidavit contained “boilerplate” language

incompatible with the particularized facts required to establish

probable cause. Appellants’ argument is unavailing. Even if

the affidavit does contain some general language,

“[a]pplications are not to be read in a piecemeal fashion.”

United States v. Williams, 580 F.2d 578, 589 (D.C. Cir. 1978).

Sparks’s affidavit contains specific facts regarding the

locations where drug transactions took place, see, e.g., Sparks

Aff. 15–16, Feb. 13, 2004, Appellants’ App’x 272–73, and

the quantities of drugs and money observed by confidential

informants, see, e.g., id. at 16–18, Appellants’ App’x 273–75.

The affidavit also contains particularized facts regarding the

phone to be tapped. These facts are sufficient to establish

probable cause despite the fact that the phone’s subscription

was not in Miller’s name. See, e.g., id. at 21–23, Appellants’

App’x 278–80 (explaining that confidential informants had

described phone calls with Miller regarding drug activity and

9

that toll record and pen register analyses confirmed those

phone calls were made on the subject phone); id. at 5–6,

Appellants’ App’x 262–63 (stating that although the phone

subscription was not in Miller’s name, the investigation had

shown the phone was regularly used by Miller). The initial

wiretap application contained particularized facts sufficient to

establish each of the three probable cause requirements under

the wiretap statute. See Williams, 580 F.2d at 589

(“[S]ections of the affidavits are framed in conclusory

terminology, but they cannot rationally be separated from the

preceding detailed descriptions of the investigative events.”).

B.

Appellants also argue agents lacked probable cause to

support an extension of the Miller wiretap. Agent Sparks’s

affidavit states FBI agents had discovered Miller sometimes

used payphones to discuss drug activity in order to avoid

being picked up by any wiretaps. Sparks Aff. 19–20, Mar. 17,

2004, Appellants’ App’x 338–39. According to appellants,

this finding vitiates any determination that there was probable

cause to believe continued wiretaps would lead to the

discovery of relevant communications. But Sparks’s affidavit

also contained plenty of examples of relevant calls picked up

during the initial wiretap period. See id. at 16–17,

Appellants’ App’x 335–36 (describing conversations in which

Miller agreed to send a courier to California and discussions

regarding how to escape fraud detection at airports); id. at 21,

Appellants’ App’x 340 (describing a call in which one

participant accidently referred to heroin without using coded

language). Although the wiretaps were less successful

because the defendants used payphones to escape detection,

Sparks’s extension affidavits demonstrated that the wiretaps

did have some value to the investigation. See United States v.

Giordano, 416 U.S. 505, 532–33 (1974) (where a wiretap

10

extension application shows that the wiretap produced results

during the initial period, there is probable cause to believe the

wiretap will continue to pick up communications concerning

the offenses being investigated). The extension authorizations

were supported by probable cause.

C.

Eiland and Miller next argue the initial wiretap

application for Miller’s phone did not satisfy the necessity

requirement. They note the government had numerous

cooperating witnesses and informants who were able to

provide the government with adequate high-level inside

information, and they complain the wiretap applications also

did not explain why physical surveillance, pen registers, or

toll-record analyses were inadequate to achieve the

government’s investigatory goals.

Agent Sparks’s initial Miller affidavit provides detailed

information about aspects of the conspiracy learned from

cooperating witnesses. Sparks noted the FBI had attempted to

obtain additional high-level informants but had not succeeded.

See Sparks Aff. 28, Feb. 13, 2004, Appellants’ App’x 285

(noting the government offered Cinquan Blakney an

opportunity to cooperate but he declined). The affidavit also

states that no informants could safely provide other detailed

information including: (a) the means by which the drugs were

obtained; (b) the manner and timetable of shipments; (c) the

locations where drugs and illegally obtained assets were

hidden; or (d) the manner in which the defendants concealed

their activities. Id. at 53, Appellants’ App’x 310. The

affidavit is sufficiently detailed with regard to both the

information obtained, and the type of information not

obtainable, from informants.

11

Appellants say Victoria Owens (CW5) was a high-level

informant who could give the government any necessary

information about the conspiracy. But the affidavit

demonstrates that even Owens did not have access to the most

closely held secrets. Owens was not one of the few trusted

people to whom Miller gave his phone number. Id. at 22–23,

Appellants’ App’x 279–80; see Carter, 449 F.3d at 1294

(wiretap affidavit adequately demonstrated necessity where it

stated reasons why use of undercover informants would be

inadequate to reveal the full nature and scope of the drug

conspiracy). Furthermore, Owens would have been a

problematic witness at trial—she was a known drug-user who

was cooperating with the government as part of a plea

agreement. It was reasonable for the government to seek

wiretap evidence that would corroborate Owens’s information

and convince a jury at trial. See Sparks Aff. 52, Feb. 13,

2004, Appellants’ App’x 309 (stating that wiretaps were

needed to establish proof beyond a reasonable doubt).

Sparks’s affidavit also explained that the conspirators

were adept at detecting physical surveillance and had moved

away from the area previously captured by a pole camera. Id.

at 49–51, Appellants’ App’x 306–08. While the use of a pen

register had provided some information to the FBI, it could

not convey to the government the substance of Miller’s calls.

Id. at 58–59, Appellants’ App’x 315–16.

In sum, the wiretap applications described the relevant

evidence that had been gathered through the use of traditional

investigative techniques. The government was not obligated

to include in the applications every detail known to it

concerning the conspiracy. See United States v. Maynard,

615 F.3d 544, 550 (D.C. Cir. 2010) (“At best, the appellants

suggest investigative techniques that might have provided

some of the evidence needed, but they give us no reason to

12

doubt the district court’s conclusion that having engaged in an

adequate range of investigative endeavors, the government

properly sought wiretap permission and was not required to

enumerate every technique or opportunity missed or

overlooked.”); Becton, 601 F.3d at 597 (holding that various

omissions from the wiretap affidavits did not undermine the

government’s necessity showing because the omissions were

not material and the government had “adequately

demonstrated the failure of normal investigative techniques to

reveal the full nature and scope of the conspiracy”). It

adequately demonstrated that traditional investigative

techniques had been employed and holes remained in the

evidence that could only reasonably be filled by a wiretap.

The authorizing court did not abuse its discretion in finding

that a wiretap was necessary for the government’s

investigation.

D.

Appellants contend information discovered after the

district court denied their motions to suppress demonstrates

the wiretap applications contained critical misstatements that

made an accurate determination of probable cause and

necessity impossible. Specifically, appellants discovered that

the cooperating witness referred to in the wiretap applications

as CW5 was Victoria Owens, who shared a house with Miller.

Appellants say if they had known CW5’s identity, they could

have successfully argued before the district court that the

government had failed to provide the authorizing court with

salient information undermining CW5’s credibility. The

government purposely concealed Owens’s identity, according

to appellants, so as not to undermine the evidence establishing

probable cause. Appellants also make a contradictory

argument. Because Owens was a trusted confidant of the

drug conspiracy’s leaders and could obtain valuable inside

13

information, the government was not able to show that a

wiretap was necessary. Both arguments fail.

Appellants did not raise these arguments before the

district court in their motion to suppress, nor did they renew

that motion after they learned of CW5’s identity. Thus, the

arguments were forfeited and our review is only for plain

error. See United States v. Olano, 507 U.S. 725, 732–35

(1993). Owens’s identity was not hidden from the authorizing

judge. See Notice 1, Feb. 13, 2004, D.D.C. Misc. No. 04-64,

Gov’t Supplemental App’x 1. The authorizing court had the

information necessary to evaluate Owens’s credibility,

including information concerning her drug use, her past

untruthful testimony, and her cooperation agreement with the

government. Appellants offer no reason for the court to

conclude that further information about Owens would have

altered the court’s determination of her credibility or

otherwise undermined its finding of probable cause.

Additionally, there was enough evidence aside from that

supplied by Owens to establish probable cause. With regard

to the necessity determination, the government described

information to which Owens did not have access and showed

that a wiretap was necessary despite her cooperation. Thus,

the omissions affected neither the determination of probable

cause nor the determination of necessity. See Becton, 601

F.3d at 597.

Moreover, the defendants did not request disclosure of

CW5’s identity in support of their request for a Franks

hearing. 3 Because appellants failed to seek that disclosure

3

When the defendants filed their motions to suppress, they also

requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154,

155–56 (1978), to inquire whether Agent Sparks had intentionally

or recklessly included a material false statement in the wiretap

affidavit. However, the statements defendants alleged were false

14

and did not argue before the district court that the government

improperly masked CW5’s identity, that argument is also

forfeited on appeal. See Flynn v. Comm’r, 269 F.3d 1064,

1068–69 (D.C. Cir. 2001) (“Generally, an argument not made

in the lower tribunal is deemed forfeited and will not be

entertained absent exceptional circumstances.”). 4 Appellants

have not demonstrated that either the masking of Owens to

protect her from retaliation or the district court’s failure to

hold a Franks hearing on the basis of that masking affected

their substantial rights. See Olano, 507 U.S. at 734.

E.

Appellants’ final argument with regard to the wiretap

evidence is that the authorizing court should not have

authorized extensions where, appellants contend, the

government did not describe the investigation’s progress in its

extension applications. An application for an extension must

include “a statement setting forth the results thus far obtained

from the interception, or a reasonable explanation of the

failure to obtain such results.” 18 U.S.C. § 2518(1)(f). The

purpose of this provision is to “permit the court realistically to

were unrelated to CW5’s identity or credibility. Appellants do not

allege the district court erred by denying the motion for a Franks

hearing based on the arguments actually presented to it.

4

Appellants also argue that by not listing CW12, who Miller asserts

is Rashawn Briggs, in the initial wiretap application affidavit, the

government omitted the critical fact that a knowledgeable and

trusted insider was cooperating, thus preventing the authorizing

court from making a reliable finding of necessity. But the record

shows that Briggs was in a halfway house from January 16, 2004 to

March 5, 2004. Oct. 19, 2006 AM Trial Tr. at 11. Briggs was not

mentioned in the initial February 13, 2004 affidavit because he was

not able to provide assistance to the investigation until he left the

halfway house. See id. at 106.

15

appraise the probability that relevant conversations will be

overheard in the future.” Giordano, 416 U.S. at 532. Each of

the government’s extension applications includes a lengthy

“summary of pertinent calls.” See, e.g., Sparks Aff. 13–33,

Mar. 17, 2004, Appellants’ App’x 332–52. Sparks’s

affidavits detail the results of the wiretaps and the

shortcomings of continued traditional investigative

techniques. The extension applications demonstrated that the

wiretaps were producing results and thus established

continuing probable cause. See Giordano, 416 U.S. at 532–

33. The authorizing court did not err in granting the

government’s applications for extensions.

III. Overview Witness Testimony

The district court erred, appellants say, by permitting

government witnesses to give improper overview testimony.

The government’s first witness at trial was FBI Agent John

Bevington. Agent Bevington testified as an expert on

investigations of illegal conspiracy cases. Oct. 4, 2006 AM

Trial Tr. at 11–12. Specifically, Agent Bevington began his

testimony with a definition of conspiracy 5 and explained

conspiracies are conducted secretly, often using coded

language. Id. at 14–17. Agent Bevington also testified about

investigative techniques, like controlled drug buys, search

warrants, surveillance, and interviews. Id. at 19–26. He

described the procedure for obtaining a search warrant and

authorization for a wiretap and explained how the FBI

monitors a wiretap. Id. at 25–33. Appellants complain this

background testimony was erroneously admitted because it

was unrelated to matters beyond a lay jury’s understanding

and would not help the jury “to understand the evidence or to

determine a fact in issue.” FED. R. EVID. 702.

5

Agent Bevington testified that a conspiracy is “an agreement

between two or more people to commit criminal acts.” Id. at 14.

16

Agent Bevington’s background testimony was properly

admitted. “The operations of narcotics dealers repeatedly

have been found to be a suitable topic for expert testimony

because they are not within the common knowledge of the

average juror.” United States v. Boney, 977 F.2d 624, 628

(D.C. Cir. 1992); see also United States v. Perez, 280 F.3d

318, 341–42 (3d Cir. 2002) (permitting expert testimony

regarding drug traffickers’ use of cell phones and pagers to

frustrate police investigations); United States v. Gil, 58 F.3d

1414, 1421–22 (9th Cir. 1995) (permitting modus operandi

testimony about drug traffickers’ counter-surveillance

techniques because “[s]uch evidence helps the jury

understand complex criminal activities, and alerts it to the

possibility that combinations of seemingly innocuous events

may indicate criminal behavior”); United States v. Tapia-

Ortiz, 23 F.3d 738, 741 (2d Cir. 1994) (“[T]he Government

was justified in introducing expert testimony explaining that

drug traffickers employ certain techniques, such as using

beepers, cash, and nicknames, in order to avoid detection.”).

Courts have also permitted law enforcement agents to testify

as experts on investigative techniques. Cf. United States v.

Miller, Nos. 07-3135 & 07-3139, slip op. at 11 (D.C. Cir.

Dec. 27, 2013) (FBI Agent Sparks’s lay testimony about

investigative techniques would not have been error had

Sparks testified as an expert).

Agent Bevington’s testimony fits within the type of

modus operandi expert testimony permitted by this and other

courts, and his description of investigative techniques

provided useful background information. The district court’s

admission of this testimony—which aided the jury in

assessing the quality of the evidence—was not error. 6

6

Even if Agent Bevington’s testimony had introduced error,

appellants have not alleged any prejudice as a result.

17

Appellants also argue Agent Bevington improperly

vouched for the cooperating witnesses. Agent Bevington

explained information given by a cooperating witness was

usually corroborated by the FBI: “[E]ven if we don’t know it

at that particular time, we have the ability to investigate

anything they tell us and determine whether or not they are

being truthful and accurate.” Oct. 4, 2006 AM Trial Tr. at 34;

see also id. at 37 (“Before the government will agree to the

plea agreement . . . we’re going to know the information

they’re providing is correct or we’re going to go out and

conduct further investigation to determine what they have

been telling us is correct.”). Agent Bevington described the

various corroborative techniques. Id. at 37–38. However,

testifying as an expert witness, he disclaimed any specific

knowledge regarding the cooperating witnesses in this case;

he spoke only about the process of obtaining cooperating

witnesses generally. Id. at 44–45.

Defendants’ motion in limine to limit the testimony of the

government’s expert witnesses did not address the errors

claimed on appeal. See Eiland Mot. in Limine, July 15, 2006,

D.D.C. 04-379, ECF No. 697. Defendants’ motion asked the

court to order the government to comply with Federal Rule of

Criminal Procedure 16(a)(1)(G) by giving the defendants a

written summary of the proposed witness testimony. 7 Id.

Eiland also requested limitations on the breadth and scope of

expert testimony, asking that the experts not be allowed to act

as “super-narrators who guide the jury through the evidence

in a manner that combines hearsay, frustrates cross-

examination, and usurps the jury’s function.” Id. at 3. At no

point did any of the defendants object to Agent Bevington’s

7

Defendants’ objection at trial similarly only concerned the

government’s compliance with Rule 16(a)(1)(G). Oct. 4, 2006 AM

Trial Tr. at 13–14.

18

testimony regarding the development or credibility of

cooperating witnesses. Therefore, we review this portion of

Agent Bevington’s testimony for plain error. See United

States v. Brown, 508 F.3d 1066, 1068 (D.C. Cir. 2007).

To establish plain error, appellants must show there was

“(1) a legal error that was (2) ‘plain’ (a term that is

synonymous with ‘clear’ or ‘obvious’), and that (3) affected

[their] substantial rights.” United States v. Wilson, 605 F.3d

985, 1022 (D.C. Cir. 2010). Even when plain error is

demonstrated, “we . . . reverse only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. Appellants “bear[] the burden of proving

each element under this standard.” Id.

Agent Bevington’s cooperating witness testimony

constitutes plain error in light of this court’s holding in United

States v. Moore, 651 F.3d 30, 59–61 (D.C. Cir. 2011), decided

after appellants’ trial. 8 In Moore, an FBI agent similarly

testified that cooperating witnesses had inside information the

FBI would try to verify before striking a deal with them. 651

F.3d at 59. This court found the “clear implication was that

the government had selected only truthful co-conspirator

witnesses for the pre-indictment investigation, from whom the

jury would hear during the trial.” Id. at 59–60. Such

testimony infringes on the jury’s role as the sole judge of a

witness’s credibility. Id. at 59. Agent Bevington’s testimony

was improper insofar as he vouched for the reliability of the

investigation and the cooperating witnesses the government

planned to have testify at trial. See id. at 60.

8

The “plainness” of an error is evaluated as of the time of appellate

review, not the time of the district court’s decision. Henderson v.

United States, 133 S. Ct. 1121, 1127–29 (2013).

19

Nevertheless, we think any error introduced is harmless.

Bevington’s testimony did not affect appellants’ substantial

rights or affect the fairness, integrity, or public reputation of

the proceedings. Prior to Agent Bevington’s testimony, the

court instructed the jury it was “not bound by an expert’s

opinion,” Oct. 4, 2006 AM Trial Tr. at 12, and the court in its

preliminary and final instructions told the jury it was the sole

judge of witness credibility, Oct. 3, 2006 AM Trial Tr. at 97–

98; Nov. 7, 2006 AM Trial Tr. at 101. The court’s final jury

instructions included a warning to the jury that “[a] witness

who realizes that he may be able to obtain his or her own

freedom or receive a lighter sentence by giving testimony

may have a motive to lie. The testimony of a witness who has

entered into a plea agreement should be received with caution

and scrutinized with care.” Nov. 7, 2006 AM Trial Tr. at 106.

The court’s instructions thus minimized any harm caused by

Bevington’s vouching. See Moore, 651 F.3d at 62 (certain

errors “had no prejudicial effect in view of limiting

instructions”).

Furthermore, the impact of Agent Bevington’s testimony

was mitigated by other factors. Unlike in Moore—where this

court also found the error harmless—Agent Bevington

acknowledged he had no knowledge of the particular

cooperating witnesses who would testify in appellants’ trial.

On cross-examination, Eiland’s attorney got Bevington to

agree that sometimes cooperating witnesses lie and that

ultimately law enforcement officers have to make a

“subjective” judgment as to whether the witness is credible.

Oct. 4, 2006 AM Trial Tr. at 52–53. Here, even without the

cooperating witnesses, there was significant evidence of

appellants’ guilt, including corroborating wiretaps. See

Brown, 508 F.3d at 1074 (prosecutor’s error in vouching for a

government witness did not require reversal because the other

evidence weighed heavily against defendant and because the

20

judge had instructed the jury that it was the sole judge of

witness credibility); see also United States v. Rawlings, 522

F.3d 403, 410–13 (D.C. Cir. 2008). Appellants have not met

their burden of demonstrating that the error affected their

substantial rights. 9

IV. Lay Opinion Testimony Interpreting Wiretap Evidence

We have held that a lay witness may not give opinion

testimony interpreting cryptic evidence when the testimony

violates Federal Rule of Evidence 701. See United States v.

Hampton, 718 F.3d 978, 981–83 (D.C. Cir. 2013); see id. at

985–86 (Brown, J., concurring). Appellants contend the

district court violated this rule in allowing FBI Agent Hall, a

government witness, to give lay opinion testimony

interpreting the calls intercepted by the government’s

wiretaps. Agent Hall, who participated in the investigation of

appellants’ drug operation, testified numerous times

throughout the trial. At times, Agent Hall’s testimony was

intended to put in context the recorded calls played at trial.

However, even if Agent Hall’s testimony constituted plain

9

To the extent appellants object to Agent Bevington’s testimony

regarding the mechanics of a plea deal, there was no plain error.

Agent Bevington merely stated that after a cooperating witness’s

compliance is complete, the government files a motion giving the

court discretion to depart from a mandatory minimum in sentencing

the witness. Oct. 4, 2006 AM Trial Tr. at 39. “This court has held

that plea agreements can be introduced by the prosecution and

referred to in their entirety, because so doing does not improperly

bolster the witness who signed the plea agreement.” Brown, 508

F.3d at 1074. The court has only suggested that “use of the

‘truthfulness’ portions of plea agreements becomes impermissible

vouching when the prosecutors explicitly or implicitly indicate that

they can monitor and accurately verify the truthfulness of the

witness’ testimony.” Id. Moreover, any error would not be

reversible for the reasons discussed above.

21

error under Hampton, appellants have not demonstrated error

warranting reversal. Appellants’ briefs fail to specifically

describe the allegedly erroneous testimony or how it may

have affected the convictions. Appellants have failed to

demonstrate any error was substantially prejudicial.

V. Replacement of Miller’s Appointed Counsel Prior to the

Second Trial

Miller argues he was denied his Sixth Amendment right

to counsel when the district court, over his objection, replaced

his appointed counsel from the first trial with new counsel

prior to the second trial. 10 Miller says the Sixth Amendment

10

In addition, Miller claims he was denied his constitutional right

to be present at all stages of his trial because the district court

decided to replace Miller’s counsel outside Miller’s presence. We

need not decide now whether a defendant has a right to be present

at a hearing on replacing counsel. See Kentucky v. Stincer, 482

U.S. 730, 745 (1987) (“[The] privilege of presence is not

guaranteed when presence would be useless, or the benefit but a

shadow, [but] due process clearly requires that a defendant be

allowed to be present to the extent that a fair and just hearing would

be thwarted by his absence.”). Miller was present at the June 26,

2006 hearing at which the court heard the government’s motion to

join Miller to the trial of the second group of conspirators. Hr’g Tr.

at 3, June 26, 2006. At that hearing the court also considered

Miller’s opposition to that motion and Miller’s request for a

severance or postponement. Id. at 4–5. Miller had an opportunity

to tell the court, through counsel, he wished to have McDaniel

continue to represent him. Id. Although Miller filed a written

motion for severance later, on July 2, the court heard and

considered argument at the June 26 hearing. Miller did not attend

the brief status conference on July 18 at which the court ordered

Miller joined to the second trial and appointed Saunders to

represent him. But the court did not hear argument on July 18.

Thus, Miller was present at the only hearing where his presence

22

compels a different rule: once an indigent defendant and his

appointed counsel develop an attorney–client relationship, the

defendant has a constitutional right to continued

representation by that attorney.

Even assuming arguendo Miller had a Sixth Amendment

right to continued representation, such a right is not absolute

where a continuance is sought to retain or replace counsel of

choice. United States v. Burton, 584 F.2d 485, 489 (D.C. Cir.

1978). Rather, the defendant’s right “must be carefully

balanced against the public’s interest in the orderly

administration of justice.” Id. The district court considers

such a motion for a continuance in its sound discretion and “is

not subject to review absent a clear abuse.” Id. at 489–90.

“Trial judges necessarily require a great deal of latitude in

scheduling trials. Not the least of their problems is that of

assembling the witnesses, lawyers, and jurors at the same

place at the same time, and this burden counsels against

continuances except for compelling reasons.” Morris v.

Slappy, 461 U.S. 1, 11 (1983). Among the factors to be

weighed by the trial judge in considering a motion for a

continuance are

the length of the requested delay; whether other

continuances have been requested and granted; the

balanced convenience or inconvenience to the litigants,

witnesses, counsel, and the court; whether the requested

delay is for legitimate reasons, or whether it is dilatory,

purposeful, or contrived; whether the defendant

contributed to the circumstance which gives rise to the

request for a continuance; whether the defendant has

might have been useful—the June 26 hearing. Miller fails to offer

any reason to suggest his attendance at the July 18 conference

would have served any purpose, particularly as he had previously

fully conveyed his views to the district court.

23

other competent counsel prepared to try the case,

including the consideration of whether the other counsel

was retained as lead or associate counsel; whether

denying the continuance will result in identifiable

prejudice to defendant’s case, and if so, whether this

prejudice is of a material or substantial nature; [and] the

complexity of the case.

Burton, 584 F.2d at 490–91. “In weighing these factors, we

presume that the trial judge’s decision was reasonable, and

find a violation of the right to the effective assistance of

counsel only if the denial of a continuance was unreasoning

and arbitrary.” United States v. Poston, 902 F.2d 90, 97 (D.C.

Cir. 1990).

Applying the relevant Burton factors to this case, we

conclude that, even if Miller had a Sixth Amendment right to

continued representation by his appointed counsel, the district

court did not abuse its discretion in denying Miller’s motion

for a continuance and replacing Miller’s counsel. Because of

McDaniel’s busy trial calendar, Miller was requesting a

seven-month continuance. The district court reasonably

concluded this was too long for Miller’s co-defendants, who

were being held without bail, to wait for their joint trial. See

Hr’g Tr. at 12, June 26, 2006. On the other hand, severing

Miller’s trial would have imposed an enormous

inconvenience on the government, witnesses, and the court,

which would have had to repeat a three-month trial for the

third time. 11 Thomas Saunders had a clear calendar to

11

Miller moved for a continuance for the second trial group or, in

the alternative, a severance so Miller could be tried separately at a

later time when McDaniel was available to continue his

representation. Miller’s motion for a severance here is nothing

more than a motion for an individual continuance. Thus, we review

24

prepare for Miller’s trial with the second group of defendants

in October 2006, see Hr’g Tr. at 2, July 18, 2006, and the

judge required McDaniel to continue his representation

through the beginning of voir dire to help Saunders prepare

for trial. See id. at 2–3; Order, July 18, 2006, D.D.C. 04-379,

ECF No. 701. The judge offered to assist Saunders by

holding prompt status conferences any time that would aid

Saunders’s preparation. Hr’g Tr. at 3, July 18, 2006. In these

circumstances, it was reasonable for the trial court to conclude

that two months would provide Saunders with enough time to

prepare for trial, particularly because he had the advantage of

being able to review the proceedings of the first trial in which

Miller was tried on the same charges.

Miller also has not shown any harm from the district

court’s decision. “In order to obtain reversal, an appellant

must show that actual prejudice resulted from denial of the

continuance.” United States v. Celis, 608 F.3d 818, 839 (D.C.

Cir. 2010). There is no indication Saunders was not fully

prepared by the time trial started. To the contrary, when just

prior to trial the government moved for a continuance to

accommodate an ill witness, Saunders opposed that motion.

Resp. to Gov’t Mot. to Continue, September 5, 2006, D.D.C.

No. 04-379, ECF No. 766. Miller is unable to point to any

way in which he was denied effective assistance of counsel. 12

The district court did not err in deciding to retry Miller

with the second group of defendants, to hold the second trial

the district court’s denial of the alternate motions under the same

standard.

12

At oral argument Miller’s counsel stated that the short time

Saunders had to prepare created an “appearance of unfairness.” But

without actual prejudice, a district court’s denial of a continuance is

not reversible error. See Celis, 608 F.3d at 839.

25

as originally scheduled in October 2006, and to replace

Miller’s appointed counsel to adhere to that trial date.

VI. Sufficiency of the Evidence Against Miller

Miller contends there was insufficient evidence presented

at trial to sustain three of his convictions. The court reviews

challenges to the sufficiency of the evidence “de novo,

viewing the evidence in the light most favorable to the

government, and affirming a guilty verdict where any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” United States v.

Littlejohn, 489 F.3d 1335, 1338 (D.C. Cir. 2007). The court

“give[s] full play to the right of the jury to determine

credibility, weigh the evidence and draw justifiable inferences

of fact.” Id.

A. Continuing Criminal Enterprise

Miller argues, through counsel, there was insufficient

evidence for the jury to convict him of engaging in a

continuing criminal enterprise in violation of 21 U.S.C. § 848.

To convict a defendant of CCE, the government must prove

the defendant committed: “1) a felony violation of the federal

narcotics law; 2) as part of a continuing series of violations;

3) in concert with five or more persons; 4) for whom the

defendant is an organizer or supervisor; 5) from which he

derives substantial income or resources.” Moore, 651 F.3d at

80. Miller contends the government failed to prove he

“occupie[d] a position of organizer, a supervisory position, or

any other position of management” with regard to five or

more people. 21 U.S.C. § 848(c)(2)(A). To satisfy this

element, the government must show the defendant “specifie[d

the supervisees’] activities in adequate detail.” United States

v. Williams-Davis, 90 F.3d 490, 508 (D.C. Cir. 1996). The

defendant must have “exercise[d] some sort of managerial

26

responsibility.” Id. “Delegation of management to an

intermediate supervisor does not prevent lower-level

subordinates from being counted in the continuing criminal

enterprise statute.” United States v. Delgado, 4 F.3d 780, 785

(9th Cir. 1993). The government identifies five individuals

whom it claims were Miller’s supervisees: Timothy Thomas,

Tyrone Thomas, Charles Brown, Darius Ames, and Jay

Ingram.

There was sufficient evidence for a jury rationally to find

Miller exercised a supervisory role over Tyrone Thomas and

Timothy Thomas. Miller exercised a supervisory role over

both of these individuals in arranging for Tyrone to transport

money to Arizona and to transport cocaine back to

Washington, D.C. “Drug runners can be considered

managees for purposes of 21 U.S.C. § 848.” United States v.

Wilson, 605 F.3d 985, 1030 (D.C. Cir. 2010). In March 2004,

Miller called Tyrone and arranged for him to drive to

Washington. Oct. 10, 2006 PM Trial Tr. at 71–73. Miller

then told Tyrone that Timothy Thomas would introduce

Tyrone to Eiland, with whom Tyrone would be exchanging

the money for drugs in Arizona. Id. at 73–74. As Tyrone was

transporting the cocaine back to Washington, Miller kept in

contact with Timothy Thomas, who was checking on

Tyrone’s progress. Oct. 12, 2006 AM Trial Tr. at 82–83;

Calls 5589, 5659, Gov’t Supplemental App’x 51–53. When

Tyrone told Timothy Thomas the cocaine had been lost,

Miller organized the response, at one point instructing

Timothy to get the baggage claim number for Tyrone’s bag.

Oct. 11, 2006 AM Trial Tr. at 24–26; Call 6154, Gov’t

Supplemental App’x 55–56. This evidence establishes Miller

exercised the requisite supervisory control over both Tyrone

Thomas and Timothy Thomas, organizing the transportation

of money and drugs.

27

The government also presented sufficient evidence to

establish Miller was a manager of Charles Brown. When

Tyrone claimed that the cocaine he shipped by bus was lost,

Miller recruited Brown to help find the cocaine. Oct. 12,

2006 PM Trial Tr. at 13–14; Call 6133, Gov’t Supplemental

App’x 54. At another time Miller arranged for Brown to

accept a package of heroin for Miller. Oct. 18, 2006 AM

Trial Tr. at 31–32.

The government’s evidence with regard to Darius Ames

is weaker but still sufficient to support the jury’s conclusion

that Ames was a supervisee of Miller. Darius Ames bagged

heroin for Eiland. Oct. 4, 2006 PM Trial Tr. at 26–27. On a

few occasions Miller came into the stash apartment where

Ames was bagging and took heroin. Id. at 43–44; Oct. 5,

2006 AM Trial Tr. at 8–14. Miller would measure out 25

grams of heroin, stretch it to 50 grams, bag it, and leave

$1,000 with Ames, directing him to give the money to Eiland.

Oct. 5, 2006 AM Trial Tr. at 8–14. In another instance,

Eiland, who was out of town at the time, directed Ames to

pick up a shoe box from Miller. Id. at 15–16. Miller was to

call Ames when Miller was ready for Ames to pick it up. Id.

When Miller called Ames, Ames drove to meet Miller and,

following Miller’s instruction, went through the alleyway to

the back door and into the basement of Miller’s aunt’s house.

Id. at 16; Oct. 4, 2006 PM Trial Tr. at 57. Miller proceeded to

give Ames a shoebox of money that Ames took and stored for

Eiland. Oct. 4, 2006 PM Trial Tr. at 57–58. Together, this

evidence, although not strong, supports the inference that

Ames was Miller’s subordinate. Both Miller and Eiland

viewed Ames as a lower-level conspirator—a gofer whom

they were free to direct. Under the deferential standard we

apply on reviewing a sufficiency challenge, we conclude a

jury rationally could have found Ames to be a supervisee of

Miller.

28

Nevertheless, the government failed to produce sufficient

evidence to demonstrate that Jay Ingram was supervised by

Miller. FBI Agent Hall testified that Ingram was a lieutenant

in the organization and was Miller’s cousin. Oct. 17, 2006

AM Trial Tr. at 56. But Ingram’s familial relation to Miller is

irrelevant, and Agent Hall’s description of Ingram as a

lieutenant is conclusory. The agent’s opinion regarding

Miller’s role has no more weight than the facts upon which it

is based, and those were insufficient. There was evidence that

Ingram obtained PCP from Miller. Oct. 19, 2006 PM Trial

Tr. at 52–53. But a buyer–seller relationship, without more,

does not suggest a managerial relationship. See United States

v. Mitchell, 49 F.3d 769, 772 (D.C. Cir. 1995); see also

United States v. Witek, 61 F.3d 819, 822–23 (11th Cir. 1995)

(“Buyers and sellers often need to accommodate one another

when meeting and arranging for delivery. Such conduct is

simply incidental to the buyer-seller relationship.”). A dealer

who simply sells drugs to other dealers and is paid from the

proceeds of their sales, but who has no other involvement in

their sales, does not exercise the managerial control required

for a CCE conviction. Id. There was no evidence presented

at trial that Miller played any ongoing role in Ingram’s sales

after supplying Ingram with PCP. Furthermore, the jury’s

verdict demonstrates that it did not deem the PCP evidence

credible. The jury found Miller not guilty of all PCP-related

charges.

The government points to an intercepted phone call in

which Eiland, who was looking for drugs, called Miller and

asked where Ingram was. Oct. 17, 2006 AM Trial Tr. at 56–

57, 65; Call 1172, Gov’t Supplemental App’x at 37. Miller

responded that Ingram was with him. Id. Rashawn Briggs, a

cooperating witness, also testified he once saw Eiland, Miller,

and Ingram meeting outside a carry-out restaurant. Oct. 19,

2006 AM Trial Tr. at 34–36. None of this evidence suggests

29

Miller acted in a supervisory capacity with regard to

Ingram. 13 This evidence of association is not enough to prove

that Miller managed Ingram.

The government’s evidence at trial was insufficient to

convince a rational jury beyond a reasonable doubt that Miller

acted as an organizer, supervisor, or manager for five or more

individuals. Because the government failed to establish one

of the elements of CCE, we vacate Miller’s conviction on this

count.

B. Narcotics Conspiracy

In a supplemental pro se brief, Miller challenges the

sufficiency of the evidence for his conviction of narcotics

conspiracy. In particular, Miller argues the evidence

introduced at trial varied from the indictment because it

established multiple conspiracies rather than the single

overarching drug conspiracy charged and that he was

prejudiced by this variance. Even though the narcotics

conspiracy conviction was vacated by the district court as a

lesser included offense of CCE, we address Miller’s argument

because the CCE conviction must be vacated and the

narcotics conspiracy conviction can now be reinstated.

To establish the existence of a narcotics conspiracy in

violation of 21 U.S.C. § 846, the government must show an

agreement between at least two people to violate narcotics

13

There was substantial evidence presented at trial showing that

Ingram was a supervisee of Eiland. See Oct. 4, 2006 PM Trial Tr.

at 58–71 (Ames testifying that Eiland twice took Ames and Ingram

to Phoenix to purchase heroin); Oct. 19, 2006 AM Trial Tr. at 15

(Briggs testifying that Ingram distributed cocaine base and heroin

for Eiland). There was not the same evidence with regard to

Miller’s relationship with Ingram.

30

law. United States v. Baugham, 449 F.3d 167, 171 (D.C. Cir.

2006). “In determining whether the evidence supports a

finding of a single conspiracy or instead only demonstrates

multiple conspiracies, we look at whether the defendants

shared a common goal, any interdependence between the

alleged participants, and any overlap among alleged

participants, such as the presence of core participants linked

to all the defendants.” United States v. Gatling, 96 F.3d 1511,

1520 (D.C. Cir. 1996). To warrant reversal, the defendant

bears the burden of showing “(1) that the evidence established

the existence of multiple conspiracies, rather than the one

conspiracy alleged in the indictment, and (2) that because of

the multiplicity of defendants and conspiracies, the jury was

substantially likely to transfer evidence from one conspiracy

to a defendant involved in another.” United States v.

Tarantino, 846 F.2d 1384, 1391 (D.C. Cir. 1988). The court

will uphold the verdict if the evidence adequately supports the

jury’s finding that a single conspiracy existed. Id.

Miller demonstrates neither variance nor prejudice. The

goal of the conspiracy, as demonstrated at trial, was to

distribute mass quantities of drugs for profit. The evidence

demonstrated the substantial profit the defendants reaped

from their participation in the conspiracy. Additionally, there

was substantial interdependence among the defendants. The

evidence at trial exposed a large section of the conspiracy’s

procurement and distribution chain. For instance, Miller and

Eiland arranged for Tyrone Thomas to travel to Arizona to

purchase wholesale amounts of cocaine. At one time Miller

also arranged for Brown to accept a package of heroin on his

behalf. Oct. 18, 2006 AM Trial Tr. at 31–32. The conspiracy

employed Darius Ames and Eric Butcher to process and bag

heroin for street-level distribution. Oct. 4, 2006 PM Trial Tr.

at 29–31; Oct. 19, 2006 PM Trial Tr. at 48–50. Eiland and

Miller also occasionally stretched heroin at the stash house.

31

Oct. 4, 2006 PM Trial Tr. at 43. Ricky Gore and Chester

Craig Simon would then obtain the heroin from Ames or

Eiland and distribute it to street-level sellers. Id. at 52–57;

Oct. 19, 2006 PM Trial Tr. at 30–35. Gore also obtained

crack from Eiland. Oct. 19, 2006 PM Trial Tr. at 44–46. The

government’s evidence clearly demonstrates the conspirators’

interdependence in obtaining, processing, and distributing the

narcotics. Each conspirator depended on the others to play

their roles in the scheme. Finally, this evidence also

establishes the overlap element—Miller and Eiland were key

participants in all of the acts, arranging for the purchase and

distribution of cocaine, heroin, and crack.

Even assuming there was a variance, Miller failed to

show he was substantially prejudiced by it. “The risk of

‘spillover prejudice,’ which may occur when a jury imputes

evidence from one conspiracy to a defendant involved in

another conspiracy, is less likely the fewer the defendants.”

United States v. Gaviria, 116 F.3d 1498, 1533 (D.C. Cir.

1997). Only four defendants were tried together in Miller’s

second trial. See id. (little risk of spillover prejudice where

only four defendants were tried). There is also less risk of

spillover prejudice where, as here, the government presents

wiretap evidence so that the jury can examine each individual

defendant’s words separately in order to convict. See id. The

jury’s not-guilty verdicts for Bryant on all charges and the

remaining defendants on the PCP-related charges suggest the

jury was able to consider the evidence against each defendant

and for each charge individually. See United States v.

Phillips, 664 F.2d 971, 1017 (5th Cir. Unit B 1981) (where

defendants were convicted on some counts and acquitted on

others, “the jury's verdict reflects that it carefully considered

the evidence supporting each charge against each defendant”).

32

The government presented sufficient evidence to sustain

Miller’s narcotics conspiracy conviction. The district court

vacated the conviction on this count as a lesser-included

offense of the continuing criminal enterprise conviction.

Because we vacate the CCE conviction, we will reinstate the

narcotics conspiracy count. See Rutledge v. United States,

517 U.S. 292, 306 (1996) (courts of appeal “may direct the

entry of judgment for a lesser included offense when a

conviction for a greater offense is reversed on grounds that

affect only the greater offense”); United States v. Baylor, 97

F.3d 542, 548 (D.C. Cir. 1996).

C. RICO Conspiracy

In his pro se brief, Miller also challenges the sufficiency

of the evidence supporting his RICO conspiracy conviction.

The RICO statute, 18 U.S.C. § 1962(d), makes it unlawful to

conspire to violate § 1962(c), which, in turn, provides that it is

unlawful for anyone “employed by or associated with any

enterprise engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or participate,

directly or indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity or collection

of unlawful debt.” 18 U.S.C. § 1962(c). Miller contends the

government failed to prove at trial the existence of either an

“enterprise” or “a pattern of racketeering activity.”

The RICO statute defines “enterprise” to include “any

union or group of individuals associated in fact although not a

legal entity.” 18 U.S.C. § 1961(4). An association-in-fact

enterprise must have three structural features: “a purpose,

relationships among those associated with the enterprise, and

longevity sufficient to permit these associates to pursue the

enterprise’s purpose.” Boyle v. United States, 556 U.S. 938,

946 (2009). An association-in-fact enterprise “need not have

33

a hierarchical structure or a ‘chain of command’; decisions

may be made on an ad hoc basis and by any number of

methods—by majority vote, consensus, a show of strength,

etc. Members of the group need not have fixed roles;

different members may perform different roles at different

times.” Id. at 948. “[P]roof of a pattern of racketeering

activity may be sufficient in a particular case to permit a jury

to infer the existence of an association-in-fact enterprise.” Id.

at 951.

A pattern of racketeering activity requires “two or more

related predicate acts of racketeering within a 10–year

period.” United States v. Crosby, 20 F.3d 480, 481 (D.C. Cir.

1994). The government must show that “the racketeering

predicates are related, and that they amount to or pose a threat

of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co.,

492 U.S. 229, 239 (1989).

The same evidence that supports the narcotics conspiracy

conviction supports the jury’s finding of an enterprise. The

enterprise’s purpose was to distribute drugs for profit. The

defendants organized themselves so each would carry out a

separate role in the distribution chain, with Eiland and Miller

overseeing the operation. Rashawn Briggs testified he was

dealing drugs with Eiland and Miller between 2000 and 2002.

Oct. 19, 2006 AM Trial Tr. at 56. Thus, the enterprise

continued for a period “sufficient to permit the[] associates to

pursue the enterprise’s purpose.” Boyle, 556 U.S. at 946.

The government also presented evidence establishing the

existence of an agreement to engage in a pattern of

racketeering activity. See Salinas v. United States, 522 U.S.

52, 65 (1997) (“A conspirator must intend to further an

endeavor which, if completed, would satisfy all of the

elements of a substantive criminal offense . . . .”). The jury

34

found the government proved agreement to commit three

racketeering acts—Act 1 (conspiracy to distribute heroin,

cocaine, and cocaine base), Act 4 (attempt to possess with

intent to distribute cocaine and unlawful use of a

communication facility), and Act 6 (attempt to possess with

intent to distribute heroin). Miller argues the proven acts

were not related. In fact, the predicate acts were related by

the nature of the acts (all narcotics offenses), temporal

proximity (the acts all occurred between 1999 and 2004),

purpose (to distribute drugs for profit), and participants. The

government established the existence of both an enterprise

and an agreement to engage in a pattern of racketeering

activity. Miller’s challenge to the RICO conspiracy

conviction will be denied.

VII. Fine Imposed on Eiland

Before sentencing Eiland, the district court vacated

Count 1, the narcotics conspiracy conviction, as a lesser

included offense of Count 3, the continuing criminal

enterprise conviction. Sentencing (Eiland) Tr. at 4, Nov. 28,

2007; Judgment as to Eiland 1, Feb. 7, 2008, D.D.C. 04-379,

ECF No. 1029. Nevertheless, the court ordered Eiland to pay

a fine of $7,000 on Count 1. Sentencing (Eiland) Tr. at 11,

Nov. 28, 2007; Judgment as to Eiland 7, Feb. 7, 2008, D.D.C.

04-379, ECF No. 1029. The government concedes it was

error for the court to impose that fine. We vacate the fine and

remand to the district court to consider whether it intended to

impose the fine on one of the remaining counts of conviction.

*****

We affirm Gerald Eiland’s convictions but vacate his fine

on Count 1. We remand for consideration of whether a fine

should be imposed on one of the remaining counts of

conviction. We vacate Frederick Miller’s conviction on

35

Count 3, continuing criminal enterprise, but affirm and

reinstate his conviction on Count 1, narcotics conspiracy.

Accordingly, we vacate Miller’s sentence and remand for

resentencing.

So ordered.