United States v. Anthony Gadson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-30007

Plaintiff-Appellee,

D.C. No.

v. 4:11-cr-00010-

RRB-4

ANTHONY GADSON, AKA Anthony

Gadsen,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 12-30047

Plaintiff-Appellee,

D.C. No.

v. 4:11-cr-00010-

RRB-2

WILLIE WILSON,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted

August 13, 2013—Anchorage, Alaska

Filed August 19, 2014

Before: Alex Kozinski, Chief Judge, and Marsha S. Berzon

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Concurrence and Dissent by Judge Berzon

2 UNITED STATES V. GADSON

SUMMARY*

Criminal Law

The panel affirmed (1) Anthony Gadson’s conviction and

sentence for conspiracy to distribute more than 500 grams of

cocaine, possession with intent to distribute controlled

substances, possession of firearms in furtherance of the

conspiracy, and possession of controlled substances; and (2)

Willie Wilson’s conviction and sentence for the same

offenses as well as for retaliation against a witness.

The panel held that the district court did not misinterpret

the hearsay rules and did not abuse its discretion in declining

to admit, as statements against interest under Fed. R. Evid.

804(b)(3), out-of-court statements by Gadson’s brother. The

panel held that the exclusion of the statements did not deprive

Gadson of his constitutional right to present a defense.

The panel held that the district court did not abuse its

discretion in admitting the government’s dog sniff expert

testimony without holding a Daubert hearing, where there

was adequate evidence regarding the reliability of the dog’s

alert.

The panel held that the district court did not plainly err by

failing to raise sua sponte the question of the authenticity of

the recordings of prison phone calls made by Gadson and

Wilson to third parties, and that the district court did not

abuse its discretion in concluding that the government had

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. GADSON 3

carried its burden of making a prima facie case that the voices

on the tapes were those of Gadson and Wilson.

The panel rejected Wilson’s multiple arguments regarding

the district court’s admission of an officer’s testimony

regarding the recorded phone calls. The panel held that the

district court did not plainly err in not considering sua sponte

whether sufficient steps were taken to ensure the statements’

accuracy, and that Wilson did not establish that the district

court plainly erred in admitting the tapes on audibility

grounds. The panel rejected Wilson’s contention that the

district court erred in allowing the officer to testify

concerning the content of the telephone calls. Applying Fed.

R. Evid. 701, the panel observed that a lay witness’s opinion

testimony necessarily draws on the witness’s own

understanding, including a wealth of personal information,

experience, and education, that cannot be placed before the

jury.

The panel held that the district court did not err in

declining to strike a portion of the officer’s testimony as

impermissible vouching, or as an improper opinion on the

ultimate issue of guilt or innocence under Fed. R. Evid.

704(b). The panel wrote that there is no basis for applying

Rule 704(b) to a lay witness.

The panel held that the district court did not plainly err in

formulating its jury instruction on Pinkerton liability, and that

a rational jury could have concluded that it was reasonably

foreseeable to Gadson that one of his co-conspirators would

use a firearm in furtherance of the drug trafficking offenses.

Reviewing for plain error, the panel held that there was

sufficient evidence to support Wilson’s conviction under 18

4 UNITED STATES V. GADSON

U.S.C. § 1513(b)(2) for assaulting an informant with the

intent to retaliate for providing information to the

government. The panel explained that unlike with

confessions to the police, corroboration is not required for

Wilson’s private statements, intercepted by the police, made

to his cousin.

The panel held that the district court did not commit

reversible error at sentencing in calculating the quantity of

drugs attributable to Gadson, in applying to Gadson a

managerial role enhancement pursuant to U.S.S.G.

§ 3B1.1(b), or in denying Wilson a minor role reduction

pursuant to U.S.S.G. § 3B1.2.

Judge Berzon concurred and dissented. She concurred

with the majority opinion except for the part concerning the

officer’s testimony as to the content of the defendants’

recorded telephone conversations. She wrote that United

States v. Freeman, 498 F.3d 893 (9th Cir. 2007), upon which

the majority’s holdings rest, goes much too far in allowing

lay officer testimony concerning recorded conversations, and

should be revisited en banc. Even accepting Freeman as

binding precedent, she would hold the trial court plainly erred

in admitting some of the officer’s testimony and that the error

was prejudicial.

UNITED STATES V. GADSON 5

COUNSEL

John Balazs, Sacramento, California, for Defendant-

Appellant Anthony Gadson.

Krista Hart, Sacramento, California, for Defendant-Appellant

Willie Wilson.

Kirby A. Heller (argued), Mythili Raman, Acting Assistant

Attorney General, Denis J. McInerney, Acting Deputy

Assistant Attorney General, Criminal Division, United States

Department of Justice, Washington, D.C.; Karen L. Loeffler,

United States Attorney, Elizabeth F. Crail, Special Assistant

United States Attorney, Stephen Cooper, Assistant United

States Attorney, Anchorage, Alaska, for Plaintiff-Appellee.

OPINION

IKUTA, Circuit Judge:

Anthony Gadson and Willie Wilson appeal their

convictions for conspiracy to distribute more than 500 grams

of cocaine, possession with intent to distribute controlled

substances, and possession of firearms in furtherance of their

conspiracy and possession of controlled substances. Wilson

also appeals his conviction for retaliation against a witness.

On appeal, they challenge various evidentiary rulings, the

correctness of certain jury instructions, the sufficiency of the

evidence as to two counts, and sentencing determinations.

We affirm the convictions.

6 UNITED STATES V. GADSON

I

During the period from March 2009 through February

2010, a residence at 5260 Fouts Avenue in Fairbanks, Alaska,

was the hub of a drug trafficking operation. Two brothers,

Brandon and Joshua Haynes, along with Donte Edwards,

lived at the Fouts house.1 Gadson, a brother of Brandon and

Joshua Haynes, visited the house from time to time, though

he lived in Anchorage. Wilson, a cousin of the Haynes

brothers and Gadson, joined the group in November 2009.

Joe Powell was also involved with the group and would

sometimes complete transactions on behalf of Brandon

Haynes.

According to testimony at trial, Joshua Haynes regularly

sold crack cocaine at or near the Fouts house. Joshua made

ten sales of cocaine to Joshua Voaklander during the spring

and summer of 2009, half of which were witnessed by

Gadson. During one of the transactions at which Gadson was

present, Joshua displayed an assault rifle hidden under his

couch cushions to Voaklander, which Joshua said was “for

when somebody comes in through the front door.”

One of the sources for the cocaine was a person with the

code name “Transporter” who brought drugs up from

Anchorage to the Fouts house in Fairbanks. On the two

occasions that Gadson’s trips to the Fouts house coincided

with Transporter’s trips, Gadson picked up bags containing

$40,000 to $50,000 in cash from Brandon Haynes. At one

point, Transporter was arrested for driving without a license,

1

We refer to Brandon and Joshua Haynes by their first names where

necessary to avoid confusion.

UNITED STATES V. GADSON 7

and Gadson complained that his arrest could have “messed

everything up,” meaning “everybody go to jail.”

Officer Avery Thompson, a member of the Alaska

Statewide Drug Enforcement Unit, began investigating this

drug conspiracy in early 2010. By February 2010, he

suspected that the Fouts house was at the center of a drug

operation. A confidential informant working with the

investigation executed two controlled buys of cocaine from

Edwards, one of which took place in the driveway of the

Fouts house. Following the buy, Officer Thompson and other

members of the Fairbanks police department obtained a

search warrant for the Fouts house. Although no one was in

the house at the time of the search, they saw footprints in the

new snow leading away from the open kitchen window.

Subsequent investigation revealed that these footprints

belonged to Wilson, and that when the police arrived, Wilson

escaped out the window in his bare feet and scrambled over

to a friend’s house.

Inside, Officer Thompson and the other police

investigators found a shoe box on top of the living room

couch containing approximately a kilogram of cocaine,

another shoe box containing another kilogram of cocaine and

some $29,000 in cash behind the drugs. Gadson’s

fingerprints were identified on the second living room shoe

box. A loaded shotgun and ballistic vests were found near the

shoe boxes. Powder cocaine, crack cocaine, ecstasy,

marijuana, drug paraphernalia, and more cash and money

orders were found in various locations in the kitchen and

dining room. The bedrooms contained more drugs. In one

bedroom, the police found Wilson’s possessions, including

prescription pill bottles in Wilson’s name and a ring with

Wilson’s initials. Inside that room, the officers found powder

8 UNITED STATES V. GADSON

cocaine, crack, marijuana, heroin, 156 tabs of ecstasy, and

approximately $13,000 in cash. A loaded handgun was

nearby on the floor.

While the police were searching the Fouts house, Wilson

had reached his friend’s house, and informed Edwards (who

was also at the friend’s house) about the raid. Edwards and

Wilson drove to Gadson’s house in Anchorage and decided

to stay there until things cooled off in Fairbanks. Brandon

Haynes was also in Anchorage at the time. After about two

weeks, Edwards returned to Fairbanks, and began buying

drugs from Gadson for sale. But when Brandon Haynes

returned to Fairbanks at the end of May, and resumed drug

activities in a new location, Edwards switched back to

Haynes as a supplier.

At some point in November 2010, the police used a

confidential informant named Donny Pitka to make a

controlled buy from Brandon Haynes. Pitka asked Brandon

to deliver the drugs to undercover police in a vehicle near

Brandon’s new apartment on Adams Drive. Brandon had

Powell deliver the cocaine, and the police arrested Powell

when he approached the vehicle. The police then closed in on

the Adams Drive apartment, arrested Brandon, and

discovered cocaine, marijuana, ecstasy, oxycontin, and

$14,000 in cash inside the apartment.

With Brandon Haynes in police custody, Edwards began

buying again from Gadson. In January 2011, Gadson sold

Edwards seven or more ounces of cocaine. By March 2011,

Gadson moved up from Anchorage to 2805 Gillam Way in

Fairbanks. On April 20, a federal grand jury indicted

Gadson, Wilson, Brandon Haynes, Edwards, Powell, and

others. Arrest warrants were issued for the defendants.

UNITED STATES V. GADSON 9

Officer Thompson picked up Gadson’s trail at the end of

April. After conducting several days of surveillance at

Gadson’s Gillam Way house and observing a good deal of

“short-term traffic” indicative of drug dealing, he obtained a

search warrant for the residence and garage. Officers

executed the warrant at the beginning of May and found a

ballistic vest and around $3,950 cash in the house. They

discovered another $38,430 in a bag in the unlocked garage.

The officers did not recover any firearms or an appreciable

amount of cocaine from the Gillam Way house. Later that

day, Gadson was arrested in his vehicle with another $1,300

on his person. Wilson turned himself in a few days later after

learning of the outstanding warrant. Further investigation of

the items obtained from the Gillam Way house suggested

they had been used in drug transactions. A drug dog named

Marley gave positive alerts for the presence of narcotics when

presented with cash found at Gadson’s house and on his

person.

Following their arrests, Gadson, Edwards, Wilson, and

Powell were all detained in the same wing of the Fairbanks

Correctional Center. Pitka, who had been involved in the

controlled buy that led to Brandon Haynes’s arrest, was in the

same prison on unrelated charges. After Powell learned about

Pitka’s role from his attorney, word spread to the other co-

conspirators. In a series of recorded phone calls between

Wilson and his cousin, Gabriella Haynes, Wilson discussed

the police reports mentioning Pitka and told Gabriella Haynes

that “the CI’s here,” using the standard abbreviation for a

confidential informant. A few days later, Wilson told

Gabriella that “[s]nitches can’t go into the hallways.” On

May 21, soon after the call to Gabriella Haynes, Wilson

assaulted Pitka as he was walking down the hallway. The

assault lasted two minutes and was captured on video.

10 UNITED STATES V. GADSON

Although the details of the fight are disputed, the video

recording shows Wilson punching Pitka, who suffered a

number of abrasions, scratches, and bites from the encounter.

The day after the assault, Wilson called Gabriella Haynes

again and told her that he hit “Donny,” who had “started this

shit,” and referenced the earlier controlled buy between Pitka

and Brandon Haynes.

On June 23, 2011, the government charged Gadson,

Wilson, and others with five crimes: conspiracy to distribute,

and possession with intent to distribute, more than 500 grams

of cocaine and other controlled substances, in violation of

21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B), (b)(1)(C), (b)(1)(D)

(Count 1); possession with intent to distribute controlled

substances, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B),

(b)(1)(C), (b)(1)(D) (Count 2); possession of firearms in

furtherance of Counts 1 and 2, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i) (Count 3); and conspiracy to retaliate

against a witness, in violation of 18 U.S.C. § 1513(e) (Count

5). The government also charged Wilson with attempting to

kill a witness, in violation of 18 U.S.C. § 1513(a)(1)(B),

(a)(2)(B) (Count 6), and retaliation against a witness, in

violation of 18 U.S.C. § 1513(b)(2) (Count 7).

On October 11, 2011, a jury found Gadson and Wilson

guilty of conspiracy to distribute, possession of drugs with

intent to distribute, and possession of three firearms in

furtherance of the conspiracy (Counts 1, 2 and 3). Wilson

was also found guilty of retaliation against a witness (Count

7). Neither was found guilty of conspiring to retaliate against

a witness (Count 5), and Wilson was acquitted of attempting

to kill a witness (Count 6).

UNITED STATES V. GADSON 11

On December 29, 2011, Gadson received a below-

Guidelines sentence of 300 months of imprisonment and eight

years of supervised release. The court attributed 10,521,103

grams of drugs to Gadson on the basis of his involvement in

the conspiracy, and the sentence included, among other

things, a three-level enhancement for having a managerial

role. On January 27, 2012, the court sentenced Wilson to 168

months of imprisonment and five years of supervised release,

a sentence that also fell below the Guideline range. The court

declined to give Wilson a minor role adjustment, noting that

he had been entrusted to guard the drugs and cash in the Fouts

house, and that he had sold drugs to Pitka and later assaulted

him.

On appeal, Gadson and Wilson challenge certain of the

district court’s evidentiary rulings and jury instructions. They

also contest the sufficiency of the evidence as to two counts.

Finally, they challenge the district court’s sentencing

determinations. We consider each of these challenges in turn.

II

We begin by addressing Gadson and Wilson’s challenges

to the district court’s evidentiary rulings. Where those

challenges have been preserved, we review the district court’s

rulings for an abuse of discretion, and uphold them unless

they are “illogical, implausible, or without support in

inferences that may be drawn from the facts in the record.”

United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009)

(en banc). We review de novo the district court’s

interpretations of the legal standard for its decision. United

States v. Waters, 627 F.3d 345, 351–52 (9th Cir. 2010).

12 UNITED STATES V. GADSON

A

First, we consider Gadson’s argument that the district

court abused its discretion by not admitting certain out-of-

court statements by his brother, Brandon Haynes.

In preparing for trial, Gadson learned that Brandon had

made two statements to the police that were helpful to

Gadson. Specifically, Brandon said that it was he who had

put the $38,000 in cash into Gadson’s garage at the Gillam

Way house. Brandon also denied that he had given Gadson

bags of $40,000 to $50,000, which contradicted Edwards’s

testimony that he had witnessed those transactions. In

addition, Brandon told Wilson in a jail conversation that

“[y]ou and I both know [Gadson] should not be in it,”

possibly referring to the case arising out of the drug operation

at the Fouts house.

Gadson subpoenaed Brandon to testify at his trial, but

Brandon invoked his Fifth Amendment right not to testify.

At trial, Gadson moved to admit Brandon’s statements under

Rule 804(b)(3) of the Federal Rules of Evidence. The district

court denied the motion, ruling that Brandon had given

inconsistent testimony, and that this evidence was “so

suspect” that “it would be a miscarriage of justice to permit

it.”

Gadson argues that the district court erroneously

interpreted the hearsay rules and that the district court thereby

abused its discretion in disallowing the evidence. According

to Gadson, although Brandon’s statements were hearsay, they

were admissible as statements against interest under Rule

804(b)(3) of the Federal Rules of Evidence. Even if those

statements did not qualify as statements against interest,

UNITED STATES V. GADSON 13

Gadson contends that their exclusion robbed him of his

constitutional right to present a complete defense.

Rule 804(b)(3) provides that out-of-court statements are

not excluded by the rule against hearsay if the declarant is

unavailable as a witness, and the statement (1) is “truly self-

inculpatory,” meaning it was “sufficiently against the

declarant’s penal interest that a reasonable person in the

declarant’s position would not have made the statement

unless believing it to be true,” Williamson v. United States,

512 U.S. 594, 603–04 (1994) (internal quotation marks

omitted), and (2) “is supported by corroborating

circumstances that clearly indicate its trustworthiness,” Fed.

R. Evid. 804(b)(3)(B).2

2

Rule 804(b)(3) states in full:

(b) The Exceptions. The following are not excluded by

the rule against hearsay if the declarant is unavailable

as a witness:

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant’s position

would have made only if the person believed it to be

true because, when made, it was so contrary to the

declarant’s proprietary or pecuniary interest or had so

great a tendency to invalidate the declarant’s claim

against someone else or to expose the declarant to civil

or criminal liability; and

(B) is supported by corroborating circumstances that

clearly indicate its trustworthiness, if it is offered in a

criminal case as one that tends to expose the declarant

to criminal liability.

14 UNITED STATES V. GADSON

The district court did not misinterpret the hearsay rules

and did not abuse its discretion in declining to admit

Brandon’s statements under Rule 804(b)(3). As an initial

matter, the parties agree that Brandon was unavailable within

the meaning of Rule 804(b) due to his invocation of his

Fifth Amendment privilege against self-incrimination.

Nevertheless, Brandon’s statements that Gadson “should not

be in it,” and that Brandon had not given Gadson two bags of

cash, are not “truly self-inculpatory” for purposes of Rule

804(b)(3)(A) because they do not expose Brandon himself to

criminal liability. Statements that “curry favor or deflect (or

share) blame” do not fall within the scope of Rule

804(b)(3)(A). Hernandez v. Small, 282 F.3d 1132, 1141 n.8

(9th Cir. 2002).

Further, while Brandon’s statement that he was the person

who had put money in the garage at the Gillam Way house

might have been self-inculpatory, the district court could have

reasonably concluded that it was not supported by

corroborating circumstances indicating its trustworthiness. In

general, the exculpatory statements of family members “are

not considered to be highly reliable,” LaGrand v. Stewart,

133 F.3d 1253, 1268 (9th Cir. 1998); see also United States

v. Paguio, 114 F.3d 928, 933 (9th Cir. 1997), and therefore

the close family relationship between Brandon and Gadson

supports the district court’s determination that Brandon’s

statements were not trustworthy. Further, the district court’s

determination that Brandon’s testimony was “suspect” or

unreliable was supported by testimony that he had made

contradictory statements to the police and his co-conspirators.

Gadson argues that there was sufficient evidence

corroborating Brandon’s statement that he had put the

$38,000 in the Gillam Way garage. Specifically, he cites the

UNITED STATES V. GADSON 15

testimony from a downstairs tenant to the effect that someone

named “Brandon” had previously lived in the apartment, and

that the garage was usually unlocked. This slight evidence

does not make the district court’s decision to disallow

Brandon’s statement “illogical, implausible, or without

support in inferences that may be drawn from facts in the

record,” Hinkson, 585 F.3d at 1251. Accordingly, the district

court’s decision not to admit the three statements at issue was

not an abuse of discretion.

Nor did the exclusion of Brandon’s statements deprive

Gadson of his constitutional right to present a defense. The

Supreme Court has held that “[a] defendant’s right to present

relevant evidence is not unlimited, but rather is subject to

reasonable restrictions,” and the exclusion of evidence is

unconstitutional “only where it has infringed upon a weighty

interest of the accused.” United States v. Scheffer, 523 U.S.

303, 308 (1998). When the excluded evidence does not bear

“persuasive assurances of trustworthiness” and is not “critical

to the defense,” Chia v. Cambra, 360 F.3d 997, 1003 (9th

Cir. 2004), its exclusion does not violate a defendant’s due

process rights, see United States v. Fowlie, 24 F.3d 1059,

1069 (9th Cir. 1994) (rejecting a due process challenge to

evidence excluded under Fed. R. Evid. 804(b)(3) because the

statement lacked any “significant indicia of reliability” and

was “tangential at best”); cf. Chambers v. Mississippi,

410 U.S. 284, 302 (1973) (holding unconstitutional an

application of evidentiary rule that precluded the admission

of a confession of guilt by a third party, where the testimony

was directly exculpatory and bore “persuasive assurances of

trustworthiness”).

In this case, Brandon’s three statements do not have any

“persuasive assurances of trustworthiness” and do not

16 UNITED STATES V. GADSON

constitute critical exculpatory evidence, such as “someone

else’s admissions of guilt.” Fowlie, 24 F.3d at 1069. Given

Brandon Haynes’s unreliability and the substantial evidence

establishing that Gadson was involved in the drug

transactions at the Fouts and Gillam Way houses, exclusion

of Brandon’s three statements did not violate Gadson’s due

process rights.

B

We next turn to Gadson’s argument that the district court

erred in admitting the government’s dog sniff expert

testimony without holding a Daubert hearing.3

At trial, the government sought to introduce testimony

from Investigator Joshua Moore, whose dog Marley gave

positive alerts for the presence of narcotics when presented

with several bundles of cash found at Gadson’s house and on

his person.

Before testifying to the jury, Investigator Moore testified

extensively during voir dire about his experience and his

dog’s training and reliability in the field. Investigator Moore

and Marley were certified as a K-9 team in June 2010.

Investigator Moore testified that he had been a canine handler

since May 2010 and had received four-and-a-half weeks of

training. Marley had been trained by another officer to detect

marijuana, heroin, cocaine, and methamphetamine.

3

Although Gadson did not join Wilson’s objection at trial to the

admission of this testimony without a Daubert hearing, we review

Gadson’s claim for abuse of discretion rather than plain error “because the

matter was sufficiently brought to the attention of the district court.”

United States v. Hieng, 679 F.3d 1131, 1141 (9th Cir. 2012).

UNITED STATES V. GADSON 17

According to Investigator Moore, Marley had practiced in a

variety of training scenarios to ensure that he was reliably

detecting the presence of various odors rather than simply

associating them with one specific set of circumstances. The

police department logs showed that Marley had a reliability

rating of 100 percent in the field and had made only one

potential false positive alert. Investigator Moore also noted

the limits to Marley’s abilities: while he could detect the

presence of four different drugs, he was unable to distinguish

between individual drugs, and so an alert as to a pile of cash

would indicate only that it had at some point been near one or

more of those four drugs.

At the conclusion of the voir dire, the court ruled that

Investigator Moore and Marley were “adequately trained and

experienced to testify, to give an opinion that possibly could

assist the jury in some way” and overruled Wilson’s objection

that the canine evidence was inadmissible without a Daubert

hearing.

On appeal, Gadson claims that dog sniff evidence is

inherently unreliable and based on junk science. In making

this argument, Gadson relies on various studies and reports

indicating that dog sniff errors may be caused by handler

cueing and errors, or may arise because drug dogs alert to

residual odors and to compounds that are not unique to

contraband. See, e.g., Richard E. Myers II, Detector Dogs

and Probable Cause, 14 Geo. Mason L. Rev. 1, 14–16, 21–24

(2006); Lisa Lit, Julie B. Schweitzer, and Anita Oberbauer,

Handler Beliefs Affect Scent Detection Dog Outcomes,

14 Animal Cognition 387 (2011). According to one expert

cited by Gadson, a dog alert is insufficient to establish

probable cause in a criminal case due to a high error rate.

Myers, supra, at 14–16. In light of this evidence, Gadson

18 UNITED STATES V. GADSON

argues that Investigator Moore’s testimony was not enough

to demonstrate reliability, and the district court should have

conducted a full hearing (as opposed to a voir dire) on the

reliability of the dog sniff evidence.

We review the district court’s decision to admit expert

testimony for abuse of discretion. Mukhtar v. Cal. State

Univ., Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002), as

amended 319 F.3d 1073 (9th Cir. 2003), overruled in

nonrelevant part by Estate of Barabin v. AstenJohnson, Inc.,

740 F.3d 457, 467 (9th Cir. 2014) (en banc). Under Rule 702

of the Federal Rules of Evidence, “[a] witness who is

qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion,”

provided the testimony meets certain criteria. Rule 702 also

requires “the trial judge [to] ensure that any and all scientific

testimony or evidence admitted is not only relevant, but

reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S.

579, 589 (1993).

Although the district court must perform a gatekeeping

function, a trial court “not only has broad latitude in

determining whether an expert’s testimony is reliable, but

also in deciding how to determine the testimony’s reliability.”

Mukhtar, 299 F.3d at 1064. The inquiry into whether the

testimony is sufficiently reliable is “a flexible one.” United

States v. Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000). A

separate pretrial hearing on reliability is not required, and a

voir dire procedure can be sufficient. Id. at 1102–05

The Supreme Court has largely disposed of Gadson’s

argument that dog sniff evidence is inherently unreliable. In

Florida v. Harris, the Supreme Court held that the Florida

Supreme Court erred by imposing an unnecessarily strict

UNITED STATES V. GADSON 19

standard for evaluating whether the alert of a drug detection

dog provided probable cause to search a vehicle. 133 S. Ct.

1050, 1056–57 (2013). According to Harris, a court can

conclude that a “dog performs reliably in detecting drugs”

based on the dog’s training, test results, field history, and

other case-specific facts. Id. at 1057–58. For example,

“evidence of a dog’s satisfactory performance in a

certification or training program can itself provide sufficient

reason to trust his alert,” although a defendant must be given

the “opportunity to challenge such evidence of a dog’s

reliability.” Id. at 1057. This conclusion disposes of

Gadson’s claim that dog sniff evidence is per se unreliable

because it is based on “junk science.”

Moreover, Harris did not suggest that a district court had

to perform a full-fledged Daubert hearing to determine

whether the dog sniff testimony was sufficiently reliable to

establish probable cause. Id. at 1056–58. Rather, the Court

held that both the state and the defendant can proffer evidence

relating to the dog’s reliability, and the court can “then

evaluate the proffered evidence to decide what all the

circumstances demonstrate. If the State has produced proof

from controlled settings that a dog performs reliably in

detecting drugs, and the defendant has not contested that

showing, then the court should find probable cause.” Id. at

1058. A district court considering whether evidence of a dog

alert is admissible under Rule 702 can undertake a similar

evaluation. Here, Gadson had ample opportunity to cross-

examine Moore, “contest the adequacy of a certification or

training program,” or raise “circumstances surrounding a

particular alert” that undercut Marley’s reliability. Id. at

1057. This was sufficient to satisfy the district court’s

gatekeeping function, and the court did not abuse its

discretion in declining to do more.

20 UNITED STATES V. GADSON

Given Harris’s determination that a dog’s alert that meets

certain reliability requirements may be sufficient to “make a

reasonably prudent person think that a search would reveal

contraband or evidence of a crime,” id. at 1058, we conclude

that a dog’s alert that meets such requirements is also

sufficiently reliable to be admissible under Rule 702. Under

the standard enunciated in Harris, the evidence regarding the

reliability of Marley’s alert was more than adequate.

Investigator Moore gave extensive testimony regarding his

and Marley’s training and certification. He also testified

regarding Marley’s reliability rating of 100 percent in the

field. The defendants did not proffer evidence to the

contrary. Accordingly, the district court did not abuse its

discretion in admitting evidence of Marley’s alert.

C

We now consider Wilson’s claim that the district court

erred by admitting the recordings of the prison phone calls

made by Gadson and Wilson to third parties because the tapes

had not been properly authenticated in violation of Rule 901

of the Federal Rules of Evidence. Wilson further claims that

Officer Thompson’s testimony was insufficient to support a

finding that the voices on the tapes belonged to the

defendants.

Because neither Gadson nor Wilson challenged the

authentication of the tapes themselves at trial, we review this

claim for plain error. See United States v. Lindsey, 634 F.3d

541, 550–51 (9th Cir. 2011). Plain error is “(1) error, (2) that

is plain, (3) that affect[s] substantial rights,” and “(4) the

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

reputation of judicial proceedings.” United States v. Cotton,

535 U.S. 625, 631 (2002) (alteration in original, internal

UNITED STATES V. GADSON 21

citations and quotations marks omitted). Wilson did

challenge the district court’s decision that the government put

forth sufficient evidence that the voices on the tapes belonged

to Gadson and Wilson, and so we review that determination

for abuse of discretion. See United States v. Yin, 935 F.2d

990, 994 (9th Cir. 1991).

Under Rule 901(a) of the Federal Rules of Evidence, in

order “[t]o satisfy the requirement of authenticating or

identifying an item of evidence, the proponent must produce

evidence sufficient to support a finding that the item is what

the proponent claims it is.” In other words, the party offering

the evidence must make a prima facie showing of authenticity

“so that a reasonable juror could find in favor of authenticity

or identification.” Yin, 935 F.2d at 996 (internal quotation

marks omitted). The item may be authenticated by extrinsic

evidence, id. at 995, such as through testimony of a

knowledgeable witness, Fed. R. Evid. 901(b)(1). Thus, where

the government offers an audiotape, a witness with

knowledge may testify that the recording is what it purports

to be, or is a true and accurate copy of the original. See

United States v. Panaro, 266 F.3d 939, 951 (9th Cir. 2001);

United States v. Mouton, 617 F.2d 1379, 1383–84 (9th Cir.

1980). Where the government offers a tape recording of the

defendant’s voice, it must also make a prima facie case that

the voice on the tape is in fact the defendant’s, whether by

means of a witness who recognizes the voice or by other

extrinsic evidence. United States v. Torres, 908 F.2d 1417,

1425 (9th Cir. 1990). Once the offering party meets this

burden, “the probative value of the evidence is a matter for

the jury.” United States v. Workinger, 90 F.3d 1409, 1415

(9th Cir. 1996). The district court does not abuse its

discretion in admitting evidence that meets the minimum

requirements for authentication. Id. at 1416.

22 UNITED STATES V. GADSON

Here, Officer Thompson testified that he was familiar

with the prison telephone system and gave detailed testimony

regarding how the system recorded all calls, how the jail call

log could be searched based on date, phone bank, and

telephone number, and how he had run such searches many

times. He testified that he reviewed more than 100 hours of

prison phone calls relating to Gadson and Wilson. Although

Officer Thompson did not testify that the calls introduced at

trial were accurate copies of the prison recordings, neither

defendant challenged the recordings on this basis. Officer

Thompson’s testimony was “sufficient to support a finding

that the item is what the proponent claims it is,” Fed. R. Evid.

901(a), and the district court did not err in failing to raise this

issue sua sponte.

Nor did the district court abuse its discretion in

concluding that the government had carried its burden of

making a prima facie case that the voices on the tapes were

those of Gadson and Wilson. Officer Thompson testified as

to the methodology he had used to identify the speakers. He

first listened to recordings of all phone calls made from the

cell wing in the prison where the defendants were held during

the applicable time period and scanned those calls for context

clues suggesting the identity of the speaker. Officer

Thompson identified Gadson’s voice on the recording based

on several factors: he had met Gadson and was familiar with

his “very unique” voice, he determined that almost all of

Gadson’s calls were to Gabriella Haynes, and in at least one

conversation, Officer Thompson heard Gadson talking about

a list of items which had been seized from his house during

the search, information accessible to only a handful of people

at that time.

UNITED STATES V. GADSON 23

Officer Thompson identified Wilson’s voice in the

recording based on other extrinsic evidence. First, Officer

Thompson heard the voice of a different prisoner calling

Gabriella Haynes shortly after Wilson was admitted. Because

the other defendants had previously been detained, Officer

Thompson reasonably inferred that this new voice belonged

to Wilson, the last member of the drug operation to be

arrested. Second, during the time Wilson was in the

segregation unit, he had to make written requests to use the

telephone, and the timing of Wilson’s requests corresponded

with the new voice’s calls to Gabriella Haynes. Finally, the

caller discussed facts particular to Wilson’s case.

Officer Thompson sufficiently narrowed the universe of

possible callers so as to support an inference that the speakers

in these calls were Gadson and Wilson. Cf. Yin, 935 F.2d at

996; Torres, 908 F.2d at 1425. Because the district court’s

admission of this testimony was not “illogical, implausible,

or without support in inferences that may be drawn from facts

in the record,” Hinkson, 585 F.3d at 1251, it did not abuse its

discretion in admitting it.

III

We next consider Wilson’s multiple arguments regarding

the district court’s admission of Officer Thompson’s

testimony regarding the recorded phone calls.

A

Because the sound quality of the tape recordings was

poor, Wilson claims that Officer Thompson was acting as a

government-produced transcript of the recordings, and the

court did not take the necessary steps to ensure the accuracy

24 UNITED STATES V. GADSON

of the transcript or interpretation. Because neither defendant

raised this claim at trial, we review it for plain error. See

Lindsey, 634 F.3d at 550–51. Applying this standard, we

conclude the district court did not plainly err. Officer

Thompson’s testimony regarding the context of the phone

calls and interpretation of ambiguous or vague statements was

not akin to a verbatim transcript of the calls, and thus the

district court did not commit plain error in not considering

sua sponte whether sufficient steps were taken to ensure the

statements’ accuracy. Cf. United States v. Armijo, 5 F.3d

1229, 1234 (9th Cir. 1993) (considering various factors

regarding the accuracy of a transcription translating recorded

telephone calls from Spanish to English). Moreover, even

under the standard applied to written transcripts, there were

ample indicia of accuracy, given that defense counsel had the

opportunity to challenge the accuracy of Officer Thompson’s

testimony and to introduce alternative versions, and the

district court informed the jury on at least three occasions that

the calls, not Officer Thompson’s testimony, were the

evidence. See id.

Nor did Wilson establish that the district court plainly

erred in admitting the tapes on audibility grounds. “A

recorded conversation is generally admissible unless the

unintelligible portions are so substantial that the recording as

a whole is untrustworthy.” United States v. Lane, 514 F.2d

22, 27 (9th Cir. 1975). Wilson has not shown that the tapes

were so uniformly unintelligible that the recordings should

not have been presented to the jury. No objection was made

at trial on this basis. Nor was there evidence “that persons in

the courtroom were unable to hear substantial portions of the

conversations recorded on the tapes, or that the words were

unintelligible.” United States v. Tisor, 96 F.3d 370, 377 (9th

Cir. 1996). Further, Wilson waived or forfeited this argument

UNITED STATES V. GADSON 25

by opposing efforts to provide the original recordings to the

jury during their deliberations. When the jury requested the

original telephone recordings (rather than the courtroom

recordings of the clips as they were played during the trial),

Wilson objected to giving the jury the original clips.

Although the government proposed to give the jury “the

clearest possible version” of the clips played at trial, Wilson

argued against various approaches suggested by the

government that would have enabled the jury to hear the

originals, and contended that the jury should be limited to the

recording of what was played in court.4 Consequently, the

district court’s failure to sua sponte exclude the tapes was not

plain error.

B

Second, Wilson asserts that the district court erred in

allowing Officer Thompson to testify concerning the content

of the telephone calls. Wilson claims this type of testimony

is inadmissible because it does not meet the criteria for lay

opinion testimony under Rule 701 of the Federal Rules of

Evidence. According to Wilson, Officer Thompson’s

testimony was inadmissible under this rule because Officer

Thompson was not a percipient witness to the conversations,

his testimony was based on the investigation as a whole, his

interpretation of vague testimony usurped the jury’s role as

trier of fact, and his interpretation of one phone call relied on

hearsay.

4

Accordingly, the dissent errs in asserting that in response to the jury’s

request for the tapes, defendants merely “consent[ed] to the district court’s

chosen solution” to the jury’s request for the tapes. Dissent at 75 & n.3.

26 UNITED STATES V. GADSON

Our consideration of Wilson’s arguments requires us to

examine the scope of Rule 701. Rule 701 allows a lay

witness to offer opinions that are (a) “rationally based on the

witness’s perception,” (b) “helpful” to the jury, and (c) “not

based on scientific, technical, or other specialized knowledge

within the scope of” expert testimony. When promulgated in

1975, this rule represented a departure from the then-

prevailing evidentiary principles governing lay witness

testimony, which generally required witnesses “to limit their

testimony just to the facts they perceived and avoid opinions

or inferences based on those facts.” 29 Charles Alan Wright

& Victor James Gold, Federal Practice & Procedure § 6251,

at 105 (1997). Courts justified this approach on the grounds

that “lay-witness opinion usurps the role of the jury, whose

job it is to draw conclusions as to the meaning of the

evidence,” and because “testimony limited to perceived facts

was considered more reliable than mere opinion, which could

be misleading.” Id. § 6252, at 109.

The drafters of Rule 701 rejected both these distinctions.

First, the distinction between “fact” and “opinion” proved to

be unworkable in practice. See Fed. R. Evid. 701 advisory

committee’s note (noting “the practical impossibility of

determining by rule what is a ‘fact’” and that “[w]itnesses

often find difficulty in expressing themselves in language

which is not that of an opinion or conclusion”); see also

United States v. Pierson, 503 F.2d 173, 176 (D.C. Cir. 1974)

(stating that the “so-called opinion rule” was “not strictly

followed—due in large part to the difficulty of drawing a fine

distinction between fact and opinion”). Indeed, as the D.C.

Circuit explained, “[t]here is no conceivable statement

however specific, detailed and ‘factual,’ that is not in some

measure the product of inference and reflection as well as

observation and memory.” Pierson, 503 F.2d at 176 (quoting

UNITED STATES V. GADSON 27

McCormick on Evidence § 11 (1972)). The drafters of Rule

701 also rejected the concern that lay opinion testimony

would mislead juries. Rule 701 assumes instead that “the

natural characteristics of the adversary system will generally

lead to an acceptable result,” and weaknesses in the lay

witness’s testimony can be emphasized through “cross-

examination and argument.” Fed. R. Evid. 701 advisory

committee’s notes; see also United States v. Beck, 418 F.3d

1008, 1015 (9th Cir. 2005) (noting that “direct and

cross-examination of a lay witness testifying as to his or her

opinion is relied upon to verify the accuracy of the

testimony”).

In applying Rule 701 to the lay opinion testimony of law

enforcement officers, we have held that an officer’s

interpretation of intercepted phone calls may meet Rule 701’s

“perception” requirement when it is an interpretation “of

ambiguous conversations based upon [the officer’s] direct

knowledge of the investigation.” United States v. Freeman

(Kevin Freeman), 498 F.3d 893, 904–05 (9th Cir. 2007); see

also United States v. Simas, 937 F.2d 459, 464–65 (9th Cir.

1991) (finding no abuse of discretion in admitting officers’

lay testimony “concerning their understanding of what

[defendant] meant to convey by his vague and ambiguous

statements”).5 In Kevin Freeman, for instance, we held that

once the government established a foundation, a police

5

The majority of the circuits allow officers to provide interpretations of

recorded conversations based on their knowledge of the investigation,

subject to various safeguards. See United States v. Albertelli, 687 F.3d

439, 444–48 (1st Cir. 2012); United States v. El-Mezain, 664 F.3d 467,

513–14 (5th Cir. 2011); United States v. Jayyousi, 657 F.3d 1085,

1102–03 (11th Cir. 2011); United States v. Rollins, 544 F.3d 820, 830–33

(7th Cir. 2008); United States v. Garcia, 994 F.2d 1499, 1506–07 (10th

Cir. 1993); United States v. De Peri, 778 F.2d 963, 977–78 (3d Cir. 1985).

28 UNITED STATES V. GADSON

officer could provide lay witness opinion testimony regarding

the meaning of statements in the defendant’s intercepted

phone calls because the testimony was based on the officer’s

“direct perception of several hours of intercepted

conversations—in some instances coupled with direct

observation of [the defendants]—and other facts he learned

during the investigation.” 498 F.3d at 904–05; see also

United States v. El-Mezain, 664 F.3d 467, 513–14 (5th Cir.

2011) (allowing lay opinion testimony interpreting telephone

calls when “the agents’ opinions were limited to their

personal perceptions from their investigation of this case”);

United States v. Rollins, 544 F.3d 820, 830–33 (7th Cir.

2008) (finding no error in the district court’s decision to

allow the agent’s testimony regarding his “impressions” of

recorded conversations when the testimony was “based on the

agent’s perceptions derived from the investigation of this

particular conspiracy”). Such testimony is admissible even

if the testifying officer was not a participant in the recorded

conversation. Kevin Freeman, 498 F.3d at 904; see also

United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir.

2011) (holding that a lay witness’s testimony was admissible

even though “he did not personally observe or participate in

the defendants’ conversations”); United States v. Garcia,

994 F.2d 1499, 1507 (10th Cir. 1993) (admitting an officer’s

opinion based only “on listening to the conversations between

coconspirators”).

Lay witness testimony regarding the meaning of

ambiguous conversations based on the witness’s direct

perceptions and experience may also prove “helpful to the

jury” for purposes of Rule 701. See Kevin Freeman, 498 F.3d

at 904–05 (agent’s “understanding of ambiguous phrases”

based on the “direct perception of several hours of intercepted

conversations” along with “direct observation” of defendants

UNITED STATES V. GADSON 29

and “other facts he learned during the investigation” resulted

in testimony that “proved helpful to the jury in determining

what the [co-conspirators] were communicating during the

recorded telephone calls”); see also Rollins, 544 F.3d at

832–33 (agent’s testimony based on listening to every

intercepted conversation, and other “personal observations

and perceptions” related to the specific case at issue “assisted

the jury in determining several facts in issue”).

On the other hand, an officer’s testimony interpreting

recorded conversations may fall outside the scope of Rule

701 if it is not based on the witness’s perception (for

example, if it is based on speculation or hearsay) or is not

helpful to the jury. Kevin Freeman, 498 F.3d at 905. Lay

testimony is not helpful to the jury if it merely provides

“‘interpretation of clear statements’” that are within the

common knowledge of the jury. Id. (quoting United States v.

Dicker, 853 F.2d 1103, 1109 (3d Cir. 1988)). In Dicker, for

instance, a government agent testified about the meaning of

recorded conversations, and explained that the parties to the

conversation were discussing means for obtaining “phony

paperwork.” 853 F.2d at 1106. But the recorded

conversations themselves did not include any discussion of

phony paperwork, and there was no indication “that the

documents to be obtained were not to be genuine.” Id. at

1105. Under these circumstances, Dicker held that the

officer’s mischaracterization of the plain words used in the

conversation was not helpful to the jury, and thus barred by

Rule 701. Id. at 1108–10; see also United States v. Freeman

(Marcus Freeman), 730 F.3d 590, 597 (6th Cir. 2013)

(holding that Rule 701 barred an officer’s testimony which

essentially “spoon-fed his interpretations of the phone calls

and the government’s theory of the case to the jury,

interpreting even ordinary English language”); Rollins,

30 UNITED STATES V. GADSON

544 F.3d at 833 (admitting an agent’s “impressions”

regarding an intercepted conversation because the agent “was

not merely telling the jury what result to reach as to the

defendants’ culpability”). As the drafters of Rule 701 noted,

“meaningless assertions which amount to little more than

choosing up sides” should be excluded for lack of

helpfulness. Fed. R. Evid. 701 advisory committee’s note.

In addition, testimony that relies on or conveys hearsay

evidence, such as when an officer relies on the truth of a third

party’s statement as the basis for an interpretation of a

statement in an intercepted phone call, is also inadmissible,

both because it would not be based on the officer’s own

perceptions, and would not be helpful. Kevin Freeman,

498 F.3d at 905. Any error in admitting lay opinion testimony

under Rule 701, however, could be harmless if in light of the

evidence as a whole, there was a “fair assurance that the jury

was not substantially swayed by the error.” Id. (internal

quotation marks omitted).

A minority of circuits have construed Rule 701 much

more narrowly and barred officers from interpreting

intercepted communications based on their review of the

recordings and personal involvement in an investigation.

Thus in United States v. Hampton, 718 F.3d 978 (D.C. Cir.

2013), the D.C. Circuit determined that a district court had

violated Rule 701 by allowing an FBI agent to testify

regarding intercepted conversations, even though the

government established that the FBI agent had been in charge

of the investigation, monitored wiretaps, performed physical

surveillance, supervised other agents who monitored the

wiretaps, and had reviewed each of the 20,000 conversations

intercepted by the wiretaps. Id. at 981–83. According to the

D.C. Circuit, such testimony raised a risk that the agent “was

testifying based upon information not before the jury” and the

UNITED STATES V. GADSON 31

jury “had no way of verifying his inferences or of

independently reaching its own interpretations.” Id. at 983

(internal quotation marks omitted); see also United States v.

Grinage, 390 F.3d 746, 750–51 (2d Cir. 2004) (same).

We disagree with this approach, which harkens back to

the evidentiary policies that were rejected by the drafters of

Rule 701. A lay witness’s opinion testimony necessarily

draws on the witness’s own understanding, including a wealth

of personal information, experience, and education, that

cannot be placed before the jury. If witnesses cannot draw on

their experience and knowledge, they are effectively limited

to presenting factual information. Such an approach echoes

the now-abandoned distinction between allowing testimony

regarding “facts” but not “opinions,” and revives the

historical policy that admitting lay opinion testimony usurps

the role of the jury, a view that was rejected by the Rule 701

drafters. See Hampton, 718 F.3d at 983; id. at 986 (Brown,

J., concurring); Grinage, 390 F.3d at 749–51.

Rule 701 does not impose such a limitation. Under Rule

701, while the district court must exercise its discretion

wisely to minimize problems that may arise in admitting lay

opinion testimony, see Albertelli, 687 F.3d at 447 (listing

dangers and safeguards), the guiding policy of the Rule is to

trust the jury to identify unreliable opinion testimony with the

help of the adversary process, see Fed. R. Evid. 701 advisory

committee’s note. Courts regularly admit lay opinion

testimony regarding the identity of a person in a photograph,

see, e.g., Beck, 418 F.3d at 1014–15, and voice identification

testimony, see, e.g., United States v. Thomas, 586 F.2d 123,

133 n.23 (9th Cir. 1978), even though the witness provides

such identification based on past contacts with the pertinent

individual that are outside the jury’s knowledge. Similarly,

32 UNITED STATES V. GADSON

an investigator who has accumulated months or even years of

experience with the events, places, and individuals involved

in an investigation necessarily draws on that knowledge when

testifying; indeed, it is those out-of-court experiences that

make the witness’s testimony helpful to the jury. Contrary to

the rationale of Hampton and Grinage, “the application of

Rule 701 should not be influenced by concern that opinion

testimony usurps the role of the jury or that factual testimony

is more reliable than opinion testimony.”6 Wright, supra,

§ 6252, at 112.

We now consider Wilson’s arguments in light of these

principles. “The admissibility of lay opinion testimony under

Rule 701 is committed to the sound discretion of the trial

judge and his decision will be overturned only if it constitutes

a clear abuse of discretion.” Nationwide Transp. Fin. v. Cass

Info. Sys., Inc., 523 F.3d 1051 (9th Cir. 2008) (quoting United

States v. Yazzie, 976 F.2d 1252, 1255 (9th Cir. 1992)).

Because Wilson did not challenge Officer Thompson’s

testimony under Rule 701 at trial, we review for plain error.

See Lindsey, 634 F.3d at 550–51.

1

First, Wilson argues that Officer Thompson could not

offer his interpretations of the recorded phone conversations

under Rule 701, because lay opinion testimony is admissible

6

We therefore decline the dissent’s invitation to adopt a rule that a lay

witness (or at least an officer) cannot provide lay opinion testimony based

on information and experiences that are within the lay witness’s

knowledge, but have not been put before the jury. Dissent at 65, 70. Such

a rule would not be consistent with the plain language of Rule 701 or our

decision in Kevin Freeman.

UNITED STATES V. GADSON 33

only when a witness was a party to the conversation himself

or was a percipient witness. Because we rejected this precise

argument in Kevin Freeman, 498 F.3d at 904–05, the district

court did not plainly err in not striking Officer Thompson’s

testimony on this ground.

2

Next, Wilson claims that Officer Thompson’s

interpretation was inadmissible because it was based on the

investigation as a whole, including the police report and

information contributed by other officers, rather than merely

his personal observations. The district court did not plainly

err in failing to strike Officer Thompson’s testimony on this

ground. According to his testimony, Officer Thompson had

been involved in the investigation of the drug conspiracy

since early 2010. His involvement spanned the searches of

the Fouts house, the multi-day surveillance of the Gillam

Way house, the search of the Gillam Way house, and the

review of around 100 hours of prison phone calls. In light of

our decision in Kevin Freeman, where we admitted testimony

based on similar experiences, the district court had ample

grounds to conclude that Officer Thompson based his

interpretations on his personal knowledge of facts he learned

during the investigation.

In arguing against this conclusion, Wilson relies on

Marcus Freeman, in which the Sixth Circuit held that an

agent’s testimony was not admissible under Rule 701 because

it was based solely on the agent’s review of 23,000 phone

conversations, rather than on the agent’s involvement in the

investigation. 730 F.3d at 596–99. The facts of Marcus

Freeman are quite different from our case, however. In

Marcus Freeman, the government conceded that the

34 UNITED STATES V. GADSON

testifying agent “lacked the first-hand knowledge required to

lay a sufficient foundation for his testimony under Rule

701(a).” Id. at 597. Because the agent had not been involved

in the surveillance of the defendant, and had not observed

“any activity relevant to interpreting the calls,” the agent

relied solely on “the general knowledge of the FBI and the

investigation as a whole.” Id. at 596. Nor did the agent shed

light on the meaning of ambiguous statements based on

personal knowledge regarding the investigation; rather the

agent essentially “spoon-fed his interpretations of the phone

calls and the government’s theory of the case to the jury,

interpreting even ordinary English language.” Id. at 597.

Under these circumstances, the agent’s testimony was not

“rationally based” on his own concrete perceptions regarding

the investigation and was not helpful to the jury, as required

by Rule 701. Here, by contrast, Officer Thompson had the

requisite personal experience and knowledge of the

investigation, had reviewed the phone calls in the context of

that knowledge, and did not merely regurgitate the

government’s theory of the case. Because the government

established a foundation for Officer Thompson’s testimony,

while such a foundation was fatally lacking in Marcus

Freeman, Marcus Freeman has little bearing on Wilson’s

claims.

3

Along the same lines, Wilson argues that the district court

erred in not sua sponte striking Officer Thompson’s

interpretation of Wilson’s reference to “Powell” to mean “Joe

Powell,” and his interpretation of Wilson’s references to

“Donte” and “they have him on tape” to mean the police had

Donte Edwards on tape. Wilson argues that this

interpretation of vague testimony usurps the jury’s function.

UNITED STATES V. GADSON 35

We disagree. Officer Thompson’s testimony was based on

his knowledge of the investigation and the persons involved,

evidence that was also before the jury. Because a jury may

become confused by vague pronouns such as “who,” “him,”

and “that,” Officer Thompson’s testimony would provide

helpful context. See Kevin Freeman, 498 F.3d at 900, 902

(holding that an officer’s interpretation of “ambiguous

statements consisting of ordinary terms,” like “that” was

admissible as lay opinion testimony).

The dissent highlights a particular conversation, where

Wilson stated “‘You know, he’s the one’”—referring to the

informant Pitka—“‘that started this shit.’ . . . ‘That time with

Batman, that was him.’” Dissent at 78. At trial, Officer

Thompson explained that “Batman” refers to Brandon

Haynes, and Wilson’s statement “that time” refers back to the

November 2010 incident (in which Officer Thompson was

involved) where Pitka executed a controlled buy from

Brandon which led to Brandon’s eventual arrest. As the

dissent recognizes, id., Officer Thompson’s testimony that

“Batman” was Brandon’s nickname is precisely the type of

investigation-specific opinion testimony that Kevin Freeman

authorizes. But contrary to the dissent, id., Officer

Thompson’s explanation of “that time” is likewise

admissible, because Kevin Freeman permits “interpretations

of ambiguous conversations based upon [the officer’s] direct

knowledge of the investigation,” 498 F.3d at 904–05. For

instance, Kevin Freeman approved of the officer’s

interpretation of the statement, “Man, it’s done already” to

mean “he’s given the cocaine to Kevin Freeman and that he’s

received his money for it.” Id. at 902. According to Kevin

Freeman, such interpretations “did nothing more than

offer one possible framework for understanding the

conversation.” Id. Officer Thompson’s testimony regarding

36 UNITED STATES V. GADSON

his interpretation of “that time” falls comfortably within the

same range of interpretive testimony. At the very least, it was

not plain error for the district court to allow the testimony.

Indeed, the dissent advances no reason why the district

court’s failure to cut off Officer Thompson’s testimony sua

sponte was “clear” or “obvious” error, United States v. Olano,

507 U.S. 725, 734 (1993) (internal quotation marks omitted),

in light of our settled law allowing this type of testimony.7

4

We next turn to Gadson’s hearsay challenge to the

admissibility of Officer Thompson’s testimony characterizing

statements made by Brandon Haynes.8 As we have

explained, lay opinion testimony may not convey or rely on

hearsay, because it is not helpful to the jury. Kevin Freeman,

498 F.3d at 905.

During Officer Thompson’s testimony about one of the

prison phone calls, he noted that Wilson was

7

We have carefully considered—and rejected—each of Wilson’s

challenges to specific statements by Officer Thompson. The dissent,

however, points to several additional parts of the trial transcript, where the

dissent claims Officer Thompson repeated clear words or speculated as to

their meaning. Dissent at 77–78. Wilson himself did not cite these

statements, let alone argue that the district court erred in failing to strike

them or that the admission of such testimony was prejudicial. Because

Wilson never raised such arguments, and the government has not had an

opportunity to respond, we decline to address them here. See Greenwood

v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (stating that we “will not

manufacture arguments for an appellant”).

8

In his brief, Wilson states that he joins this argument. Fed. R. App. P.

28(i).

UNITED STATES V. GADSON 37

reading off of a portion of the [police] report

that we made after interviewing Brandon

Haynes. You hear Brandon Haynes . . . in the

background . . . [say] ‘Hell, no.’ One thing

we learned throughout this investigation is

that in different phone calls [Brandon Haynes]

made numerous denials to everyone, even

though we had a video-recorded, audio-

recorded interview with Mr. Haynes where he

made these admissions to us.

Gadson’s counsel made a hearsay objection to “the purported

admissions of Brandon Haynes,” but the district court

implicitly denied the objection.

According to Gadson, Officer Thompson’s statement that

Brandon “made these admissions to us” is hearsay that is not

admissible under any exception. We disagree. Officer

Thompson’s statement that Brandon “made these admissions

to us” does not meet the definition of hearsay: a statement

that is offered “to prove the truth of the matter asserted in the

statement.” Fed. R. Evid. 801(c)(2). Officer Thompson did

not testify as to the nature of “these admissions,” repeat any

assertion made by Brandon, or suggest that the jury should

consider any admission made by Brandon to be truthful.

Rather, Officer Thompson mentioned Brandon’s admissions

to the police as context for the recorded phone call, and to

explain why the jurors would hear Brandon state “Hell, no”

in the background. A witness making statements to provide

clarification and context for other statements is not offering

evidence for the truth of the matter asserted, and such

testimony does not run afoul of any hearsay prohibition. See

United States v. Collicott, 92 F.3d 973, 981 n.7 (9th Cir.

1996); see also United States v. Whitman, 771 F.2d 1348,

38 UNITED STATES V. GADSON

1352 (9th Cir. 1985) (no error where informant’s recorded

statements were only offered “to show that they were made,”

and to put the statements in context, rather than for their

truth). Accordingly, the district court did not abuse its

discretion in declining to strike this testimony.

5

Finally, Wilson argues that the district court erred in

allowing Officer Thompson to provide his interpretation of

drug jargon such as “nine of leaded” (crack cocaine), or “a

strap” (firearm), because he had not been qualified as an

expert witness.9 Because neither Gadson nor Wilson objected

at trial to the drug jargon testimony as impermissible expert

testimony, we review this claim for plain error. See United

States v. Pino-Noriega, 189 F.3d 1089, 1097 (9th Cir. 1999).

“[L]aw enforcement testimony about the meaning of drug

jargon may be both expert and lay testimony, depending on

the circumstances.” United States v. Reed, 575 F.3d 900, 922

(9th Cir. 2009). Unlike a lay witness, a witness who is an

expert on drug jargon may interpret encoded drug terms even

if the witness had not been involved in that particular

investigation. See id. And so police officers’ testimony

regarding drug terms related to an investigation may be

expert opinion testimony, lay opinion testimony, or both.

Although we have noted the difficulties that may arise when

an agent qualified as an expert also provided lay testimony,

9

The dissent suggests that Officer Thompson should have been qualified

as an expert before offering any of his opinions because he used

“specialized equipment” to listen the phone calls. Dissent at 70. None of

the parties objected to Officer Thompson’s testimony on this basis at trial,

and Wilson has not raised this argument on appeal.

UNITED STATES V. GADSON 39

see Kevin Freeman, 498 F.3d at 903–04, we have

nevertheless held that such dual use of “case agents as both

expert and lay witnesses is not so inherently suspect that it

should be categorically prohibited.” Id. at 904.

Our concerns regarding a witness who qualifies as an

expert giving lay opinion testimony are not directly

applicable when an agent who is providing lay testimony also

interprets a few drug terms in the context of discussing

personal observations. While witnesses who testify as an

expert may receive “unmerited credibility” for their lay

testimony, because expert testimony is “likely to carry special

weight with the jury,” id. at 903 (internal quotation marks

omitted), the converse is not true: a lay witness’s testimony

carries no special weight, even if at points the lay witness has

recourse to relevant background and training. Similarly, there

is no special risk that lay testimony regarding firsthand

observations would be merely speculative. Cf. id. at 904. We

have also expressed concern that because expert witnesses

may opine on matters about which they have no personal

knowledge, they may also rely on inadmissible hearsay when

providing lay testimony. Id. Such a danger does not

necessarily arise when lay witnesses are testifying about

matters in which they were involved.

Here, Officer Thompson testified primarily as a lay

witness providing his firsthand knowledge of the case; he

referenced his reliance on training and police experience (as

opposed to familiarity with the individuals through the

specific investigation) only when defining the single term

“nine of leaded.” This isolated instance does not raise the

concerns identified in Kevin Freeman. Further, the district

court could reasonably conclude that Officer Thompson

encountered the two terms at issue in the context of his

40 UNITED STATES V. GADSON

investigation as well as through his training and experience.

See Reed, 575 F.3d at 922. “Because the distinction between

lay and expert testimony in this context is a fine one, we do

not fault the district court for failing to intervene sua

sponte.”10 Kevin Freeman, 498 F.3d at 904.

We also reject Wilson’s argument that Officer

Thompson’s reference to police reports, or to his use of

special equipment to review the tapes, gave him an

unwarranted aura of special knowledge. Wilson did not raise

this argument at trial, and the district court did not plainly err

in not addressing sua sponte this concern.

C

Both defendants object to a specific portion of Officer

Thompson’s testimony in response to questioning by

Wilson’s attorney. After Officer Thompson had testified

regarding the recorded prison phone calls, Wilson’s attorney

engaged him in the following colloquy:

[Wilson’s attorney]: [N]onetheless, when we

come into the life or come into the courtroom,

10

Further, the admission of Officer Thompson’s definition of these

terms did not affect the defendants’ substantial rights, because the

evidence regarding Officer Thompson’s background and experience (he

had been assigned to the statewide drug enforcement unit for the previous

three and a half years and had received several hundred hours of training

in drug-related investigations) would have qualified him to give expert

testimony on this subject. See United States v. Figueroa-Lopez, 125 F.3d

1241, 1247 (9th Cir. 1997) (holding that the admission of lay testimony

about countersurveillance operations was harmless because witness was

indeed qualified to give expert opinion testimony on that subject).

UNITED STATES V. GADSON 41

wherever we go, we bring our own position

and biases with us.

[Officer Thompson]: I would agree.

[Wilson’s Attorney]: Right. So you would

have a tendency to project a police officer’s

interpretation onto things?

[Officer Thompson]: I would—I would state

yes, that I think I put a— a— good case

together, and I’m confident of the people

charged in the case are guilty of the crimes.

Gadson’s counsel objected to Officer Thompson’s answer on

the ground that it constituted vouching. The district court did

not strike the answer, but stated before the jury: “[u]ltimately

it’s up to the jury to determine guilt or innocence, and so the

jury should consider all the evidence presented in that

regard.”

On appeal, Gadson renews his argument that Officer

Thompson’s statement constituted impermissible vouching

because it was Officer Thompson’s personal opinion of the

defendants’ guilt. Wilson joins this argument, and also

argues that Officer Thompson’s opinion was improper

because it went to the ultimate issue of the defendants’ guilt,

in violation of Rule 704(b) of the Federal Rules of Evidence.

Prosecutors may not place “the prestige of the

government behind a witness through personal assurances of

the witness’s veracity, or suggesting that information not

presented to the jury supports the witness’s testimony.”

United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.

42 UNITED STATES V. GADSON

1993). By putting an unwarranted imprimatur of credibility

or authority on the testifying witness, a prosecutor may

“jeopardize the defendant’s right to be tried solely on the

basis of the evidence presented to the jury.” United States v.

Weatherspoon, 410 F.3d 1142, 1146–48 (9th Cir. 2005)

(internal citations omitted). In this case, however, the

government did not elicit Officer Thompson’s testimony, nor

did it vouch for his credibility “either by putting its own

prestige behind the witness, or by indicating that extrinsic

information not presented in court supports the witness’[s]

testimony.” United States v. Garcia-Guizar, 160 F.3d 511,

520 (9th Cir. 1998) (internal quotation marks omitted).

Rather, Officer Thompson testified only that he was confident

about his own testimony after defense counsel attacked his

credibility. The defendants have not pointed to any case

suggesting that such testimony constitutes impermissible

vouching. Accordingly, the district court did not err in

declining to strike the testimony on that ground.

Wilson argues that the district court erred in not striking

Officer Thompson’s response because it was an opinion on

the ultimate issue of guilt or innocence. Under Rule 704(b),

an expert witness in a criminal case “must not state an

opinion about whether the defendant did or did not have a

mental state or condition that constitutes an element of the

crime charged or of a defense.” We have interpreted this rule

as precluding an expert witness from offering “a direct

opinion on the defendant’s guilt or innocence.” Kevin

Freeman, 498 F.3d at 906. But Rule 704(b) is inapplicable

by its terms. Officer Thompson was not testifying as an

expert witness here. The defendants have cited no cases

applying Rule 704(b) to a lay witness, and there is no basis

for doing so under the text of the rule. Accordingly, the

UNITED STATES V. GADSON 43

district court did not err in not striking the testimony on Rule

704(b) grounds.11

IV

Gadson raises two challenges relating to the government’s

reliance on Pinkerton v. United States, 328 U.S. 640 (1946),

to obtain his conviction for possessing firearms in furtherance

of drug trafficking offenses under 18 U.S.C. § 924(c)(1).12 At

trial, the government relied on Pinkerton, which “renders all

co-conspirators criminally liable for reasonably foreseeable

overt acts committed by others in furtherance of the

conspiracy they have joined, whether they were aware of

them or not.” United States v. Hernandez-Orellana, 539 F.3d

994, 1007 (9th Cir. 2008). The jury found Gadson guilty with

respect to a shotgun and handgun found inside the Fouts

house, but not guilty with respect to a rifle found outside.

11

Indeed, even if Officer Thompson had testified as an expert witness,

any error in failing to strike his remark would have been harmless. In

analogous circumstances, we have held that a failure to strike a single

comment over the course of a lengthy trial was not plain error when the

government did not rely on the comment in its arguments to the jury. Cf.

United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir. 1992). The

government did not cite Officer Thompson’s comment at all. Moreover,

the court gave an immediate curative instruction to the jury, stating that:

“[u]ltimately it’s up to the jury to determine guilt or innocence, and so the

jury should consider all the evidence presented in that regard.”

12

The statute provides that “any person who, during and in relation to

any crime of violence or drug trafficking crime . . . uses or carries a

firearm, or who, in furtherance of any such crime, possesses a firearm,

shall, in addition to the punishment provided for such crime of violence

or drug trafficking crime—(i) be sentenced to a term of imprisonment of

not less than 5 years.” 18 U.S.C. § 924(c)(1)(A).

44 UNITED STATES V. GADSON

Gadson challenges the instruction on Pinkerton liability

given to the jury, arguing that it allowed him to be convicted

without a showing that the coconspirators’ use of the firearms

was reasonably foreseeable to him. He also challenges the

sufficiency of the evidence to convict him under a Pinkerton

theory.

A

We begin by considering the district court’s instruction on

Pinkerton liability:

[Y]ou may find the defendant guilty of . . .

possession of a firearm in furtherance of . . .

drug trafficking, Count 3, if the government

has proved each of the following elements

beyond a reasonable doubt:

First, a person named in the respective count

of the first superseding indictment committed

the crime as alleged in the count. Second, the

person was a member of the conspiracy

charged in Count 1 of the superseding

indictment. Third, the person committed the

crime in furtherance of the conspiracy . . . .

Fourth, the defendant was a member of the

same conspiracy at the time the offense was

committed. And, fifth, the offense fell within

the scope of the unlawful agreement and

could reasonably have been foreseen to be a

necessary or natural consequence of the

unlawful agreement.

UNITED STATES V. GADSON 45

Gadson claims that this instruction misstated the law. He

focuses on the portion of the court’s instruction which stated

that the jury could find Gadson guilty of the firearm offense

committed by a coconspirator only if the government proved

beyond reasonable doubt that the offense “could reasonably

have been foreseen to be a necessary or natural consequence

of the unlawful agreement.” According to Gadson, the

instruction failed to convey to the jury that it had to find that

the offense was reasonably foreseeable to Gadson, not just

objectively reasonably foreseeable to a coconspirator.

Neither Gadson nor Wilson raised this particular

objection to the Pinkerton instruction, and so our review is

for plain error. See United States v. Kessi, 868 F.2d 1097,

1102 (9th Cir. 1989) (one type of objection to an instruction

does not necessarily preserve another objection if there was

no reason to believe the district court was fully aware of that

objection). We conclude that the district court did not plainly

err in formulating its Pinkerton instruction. The instruction

directly tracks the language of Pinkerton, which held that

coconspirator liability would not extend to a case where

the substantive offense committed by one of

the conspirators was not in fact done in

furtherance of the conspiracy, did not fall

within the scope of the unlawful project, or

was merely a part of the ramifications of the

plan which could not be reasonably foreseen

as a necessary or natural consequence of the

unlawful agreement.

328 U.S. at 647–48. Moreover, we have upheld an

identical instruction as “an accurate statement of the

applicable law.” United States v. Alvarez-Valenzuela, 231

46 UNITED STATES V. GADSON

F.3d 1198, 1202–03 (9th Cir. 2000).13 Indeed, the Ninth

Circuit Model Criminal Jury Instruction 8.25 requires only

that “the offense fell within the scope of the unlawful

agreement and could reasonably have been foreseen to be a

13

The instruction upheld in Alvarez-Valenzuela was as follows:

Each member of a conspiracy is responsible for the

actions of the other members performed during the

course and in furtherance of the conspiracy. If one

member of the conspiracy commits a crime in

furtherance of the conspiracy, the other members have

also, under the law, committed that crime. Therefore,

you may find a defendant guilty of possession of a

firearm during and in relation to a drug trafficking

crime, as charged in Count 1 or in Count 3 of the

Indictment, if the government has proven each of the

following elements beyond a reasonable doubt:

First, a person involved in the conspiracy in Count 1 or

Count 3 knowingly possessed a firearm during and in

relation to a drug trafficking crime;

Second, the person was a member of the conspiracy

charged in Count 1 or Count 3;

Third, the person possessed the firearm in furtherance

of the conspiracy;

Fourth, the defendant was a member of the same

conspiracy at the time that the offense charged in either

Count 1 or Count 3 was committed; and

Fifth, the offense fell within the scope of the unlawful

agreement and could reasonably have been foreseen to

be a necessary or natural consequence of the unlawful

agreement.

231 F.3d at 1202–03.

UNITED STATES V. GADSON 47

necessary or natural consequence of the unlawful agreement.”

In light of this authority, we cannot say that the district

court’s formulation of the jury instruction was error that is

plain, or that the instructions, read as a whole, were

“misleading or inadequate to guide the jury’s deliberation,”

United States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir.

1999).

In arguing otherwise, Gadson relies on United States v.

Castaneda, 9 F.3d 761 (9th Cir. 1993), overruled in

nonrelevant part by United States v. Nordby, 225 F.3d 1053,

1059 (9th Cir. 2000), which identified a due process

limitation on the scope of Pinkerton liability in certain

circumstances. Id. at 766. In Castaneda, the wife of a major

drug trafficker was charged with a violation of § 924(c) under

a Pinkerton theory. The only evidence linking the wife to the

conspiracy was her marital relationship to her husband and a

few phone calls in which the wife relayed information to

members of the conspiracy at her husband’s request. Id. at

767–68. We held that “due process constrains the application

of Pinkerton where the relationship between the defendant

and the substantive offense is slight,” id. at 766, and

concluded that a Pinkerton instruction would violate due

process on the facts of that case, given the slight connection

between the wife and the conspiracy, id. at 768. We

emphasized, however, the narrowness of this holding. Id.

The due process concerns identified in Castaneda are not

present here. There was substantial evidence of Gadson’s

participation in the drug conspiracy, and a reasonable jury

could conclude that Gadson could have foreseen the use of

firearms in connection with the drug trafficking.

Accordingly, the application of a Pinkerton theory in this

48 UNITED STATES V. GADSON

context does not violate “fundamental precepts of due

process.” Id.

Gadson’s reliance on United States v. Green, 592 F.3d

1057 (9th Cir. 2010), is likewise misplaced. Green analyzed

the elements of vicarious liability for mail and wire fraud, and

determined as a matter of first impression that the fraudulent

acts committed by third parties in furtherance of the scheme

must be reasonably foreseeable to the defendant for liability

to attach. Id. at 1069–71. Based on this analysis, we struck

down a jury instruction that required the government to prove

only that “defendant or a co-schemer knew or could have

reasonably foreseen” that a fraudulent communication would

be emailed or faxed as part of the scheme. Id. Given that

Gadson was not charged with the specific crime at issue in

Green, it does not affect our plain error analysis.

B

Gadson also challenges the sufficiency of the evidence

introduced at trial to support his conviction under Pinkerton

for possession of two firearms in furtherance of drug

trafficking pursuant to 18 U.S.C. § 924(c)(1).

To establish Gadson’s liability under a Pinkerton theory,

the government had to prove that it could be “reasonably

foreseen as a necessary or natural consequence of the

unlawful agreement” that one of Gadson’s “coconspirators

would use a firearm” in furtherance of the drug trafficking

offenses. United States v. Carter, 560 F.3d 1107, 1113 (9th

Cir. 2009) (internal quotation marks omitted). The

government need not prove that Gadson had “actual

knowledge that guns would be used,” only that he was

involved in the plan and such use would be reasonably

UNITED STATES V. GADSON 49

foreseeable “from the nature of the plan.” Id. (internal

quotation marks omitted).

Gadson does not challenge the jury’s finding that one of

the co-conspirators used a gun in furtherance of drug

trafficking. Rather, he argues that the evidence was

insufficient to prove that he could have reasonably foreseen

that a co-conspirator at the Fouts house possessed the shotgun

and handgun in furtherance of the drug conspiracy.

In reviewing the constitutional sufficiency of evidence to

support a criminal conviction, we must determine whether

“after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Although

Gadson moved for a judgment of acquittal under Rule 29 of

the Federal Rules of Criminal Procedure after the close of the

government’s case, he did not renew his motion after the

close of all the evidence. Accordingly, we review his

challenge for plain error, see United States v. Phillips, 704

F.3d 754, 762 (9th Cir. 2012), cert. denied, 133 S. Ct. 2796

(2013), although we are mindful that plain error review of a

sufficiency claim is only “theoretically more stringent than

the standard for a preserved claim,” United States v. Flyer,

633 F.3d 911, 917 (9th Cir. 2011) (internal quotation marks

omitted).

Under this standard of review, the evidence was sufficient

to sustain Gadson’s conviction for possession of the two

firearms in furtherance of the charged drug crimes. The

evidence at trial showed that Gadson frequented the Fouts

house, was a core member of the conspiracy, and was a

primary supplier of cocaine sold out of the Fouts house. The

50 UNITED STATES V. GADSON

jury heard expert testimony that drug dealers commonly keep

guns at locations with large quantities of drugs or money

because they are concerned about raids by police or

competitors, and the government introduced evidence

regarding the drugs, cash, and firearms found at the Fouts

house. There was also the more specific testimony at trial

that Gadson was present when Joshua Haynes showed

Voaklander an assault rifle hidden under the couch cushions

and explained that it was to be used in case “somebody comes

in through the front door.” Taking this evidence in the light

most favorable to the prosecution, Jackson, 443 U.S. at 319,

a rational jury could have concluded that it was reasonably

foreseeable to Gadson that one of his co-conspirators would

use a firearm in furtherance of the drug trafficking offenses.

V

Wilson challenges the sufficiency of the evidence at trial

as well. His claim is that the evidence introduced at trial was

insufficient to support a finding that he assaulted Pitka in

retaliation for providing information to a federal official in

violation of 18 U.S.C. § 1513(b)(2).14 Wilson did not move

14

The statute provides:

(b) Whoever knowingly engages in any conduct and

thereby causes bodily injury to another person or

damages the tangible property of another person, or

threatens to do so, with intent to retaliate against any

person for—

(2) any information relating to the commission or

possible commission of a Federal offense or a violation

of conditions of probation, supervised release, parole,

or release pending judicial proceedings given by a

person to a law enforcement officer;

UNITED STATES V. GADSON 51

for acquittal at the close of trial, and so we review for plain

error.

To prove a violation of § 1513(b)(2), the government

must show: “(1) knowing engagement in conduct (2) either

causing, or threatening to cause, bodily injury to another

person (3) with the intent to retaliate for, inter alia,”

providing information relating to a federal offense to a law

enforcement officer. United States v. Henderson, 626 F.3d

326, 342 (6th Cir. 2010) (internal quotation marks omitted).

Wilson argues that no rational trier of fact could conclude

that he acted with the requisite intent to retaliate against

Pitka.

Wilson’s argument fails. Taking the evidence in the light

most favorable to the prosecution, the evidence showed that

Wilson knew that Pitka was a confidential informant who had

implicated Wilson and other coconspirators to the police.

Further, a jury could have concluded that Wilson intended to

harm Pitka because he was a “snitch.” The evidence shows

that Wilson assaulted Pitka in the hallway a few days after

telling Gabriella Haynes that “[s]nitches can’t go into the

hallways,” and later reported to Gabriella that he had hit

“Donny,” and made other statements suggesting he thought

it was Pitka’s involvement in the controlled buy that led to

the unraveling of the drug conspiracy. Wilson offered no

alternative explanation for the assault. Based on this

evidence, a reasonable juror could conclude that Wilson

intended to retaliate because Pitka provided information to

or attempts to do so, shall be fined under this title or

imprisoned not more than 20 years, or both.

18 U.S.C. § 1513(b)(2).

52 UNITED STATES V. GADSON

the government. Accordingly, there was sufficient evidence

to support Wilson’s conviction under 18 U.S.C. § 1513(b)(2).

Because the evidence establishing that Wilson had the

specific intent to retaliate against Pitka was derived primarily

from his recorded telephone calls, Wilson also argues that the

jury could not rely on this evidence because the calls

constituted confessions that had not been adequately

corroborated. See United States v. Lopez-Alvarez, 970 F.2d

583, 589–90 (9th Cir. 1992). We disagree. Lopez-Alvarez

stated the longstanding rule that under most circumstances, a

confession made to the police “requires some independent

corroborating evidence in order to serve as the basis for a

conviction.” Id. at 589. We explained that the purpose of

this rule is to address the “high incidence of false confessions

and the resulting need to prevent errors in convictions based

upon untrue confessions alone.” Id. (internal quotation marks

omitted). A secondary rationale is to preserve a robust

criminal justice system premised on “extrinsic evidence

independently secured through skillful investigation,” rather

than one that relies heavily on confessions. Id. at 589 n.5.

Wilson’s statements to his cousin are not confessions to the

police, but private statements that were intercepted by the

police. Therefore, the corroboration requirement of Lopez-

Alvarez is not applicable. Moreover, the policy rationales

underlying Lopez-Alvarez are not present when police

investigation obtains statements or admissions made by the

defendant to a third person under the circumstances here.

VI

We now address Gadson and Wilson’s claims that the

district court committed procedural errors at sentencing. In

determining whether the district court erred in its calculation

UNITED STATES V. GADSON 53

of a defendant’s sentence, we review the district court’s

interpretation of the Guidelines de novo, its application of the

Guidelines to the facts for abuse of discretion, and its factual

findings, including drug quantity and roles in an offense, for

clear error. United States v. Staten, 466 F.3d 708, 713 (9th

Cir. 2006); see also United States v. Gonzalez, 528 F.3d

1207, 1214 (9th Cir. 2008) (drug quantity); United States v.

Rivera, 527 F.3d 891, 908 (9th Cir. 2008) (roles).

A

The Sentencing Guidelines set forth a procedure for

determining the applicable sentencing range. The district

court must first determine the correct offense guideline

section applicable to the offense of conviction, and then

determine the correct base offense level. United States v.

Rivera-Gomez, 634 F.3d 507, 510–11 (9th Cir. 2011). Here

the guideline for Gadson’s convictions under 21 U.S.C.

§ 841(a)(1) for Counts 1 and 2 (conspiracy to distribute and

possession of a controlled substance with intent to distribute)

is § 2D1.1 of the Sentencing Guidelines. Section 2D1.1(a)(5)

directs the district court to add up the drugs for which the

defendant was responsible and then use the Guidelines’ Drug

Quantity Table to determine the defendant’s base offense

level. In determining the quantity of drugs for which a

defendant is responsible, the district court is to consider all

quantities of contraband with which the defendant was

directly involved, and “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). After

calculating the base offense level, the district court must

determine the specific offense characteristics, id. § 2D1.1(b),

determine any adjustments related to victim, role, and

54 UNITED STATES V. GADSON

obstruction of justice, id. § 1B1.1(a)(3), and determine the

defendant’s criminal history category, id. § 1B1.1(a)(6).

In making the required calculation of drug quantities,

the district court adopted the Presentence Investigation

Report’s (PSR) findings that Gadson was responsible for

10,521,103 grams of marijuana equivalency, resulting in a

base offense level of 36. See U.S.S.G. § 2D1.1(c)(2). The

district court also adopted a two-level adjustment for

“maintain[ing] a premises for the purpose of manufacturing

or distributing a controlled substance,” id. § 2D1.1(b)(12),

a three-level adjustment for being “a manager or

supervisor (but not an organizer or leader) and the criminal

activity involved five or more participants or was otherwise

extensive,” id. § 3B1.1(b), and a two-level adjustment

for obstruction of justice, id. § 3C1.1. Accordingly, the

district court assigned Gadson a total offense level of 43,

resulting in a Guideline sentencing range of life. U.S.S.G.

Ch. 5, pt. A. The district court ultimately sentenced Gadson

to 300 months of imprisonment and eight years of supervised

release.

Gadson argues that the district court clearly erred in two

ways in its calculation of the Guidelines range. First, he

argues that the district court erred in calculating the quantity

of drugs attributable to him. Second, he argues that there was

insufficient evidence to support the three-level enhancement

for having a managerial or supervisory role.

1

We start with Gadson’s claim that the district court’s

calculation of the drug quantity attributable to Gadson was

clearly erroneous. In cases involving “jointly undertaken

UNITED STATES V. GADSON 55

criminal activity,” the base offense level is determined on

the basis of “all reasonably foreseeable acts and omissions

of others in furtherance” of that activity. U.S.S.G.

§ 1B1.3(a)(1)(B). The government bears the burden of

proving the amount of drugs attributable to a defendant by a

preponderance of the evidence. United States v. Culps,

300 F.3d 1069, 1076 (9th Cir. 2002). A district court may

approximate the amount of drugs attributable to a defendant

where the amount of drugs seized by the officers “does not

reflect the scale of the offense.” U.S.S.G. § 2D1.1 cmt. 5. In

making an estimate, the court may consider, among other

factors, “the price generally obtained for the controlled

substance, financial or other records, [and] similar

transactions in controlled substances by the defendant.” Id.

Thus, a court may convert cash into drug quantities, provided

there is some evidence supporting a connection between the

money seized and the drug transactions. See United States v.

Otis, 127 F.3d 829, 836 (9th Cir. 1997) (citing United States

v. Gonzalez-Sanchez, 953 F.2d 1184 (9th Cir. 1992)).

In this case, the PSR attributed to Gadson all the drugs

seized from the Fouts house (1,977.4 grams of powder

cocaine, 186 ecstasy pills, 31.5 grams of marijuana, 17.02

grams of crack cocaine, and 4.8 grams of heroin), all the

drugs seized from the Gillam Way house (.4 grams of powder

cocaine and 140.9 grams of marijuana), ten purchases of

nine-ounce units of crack by Voaklander (2,551 grams), and

another 4,623.7 grams of powder cocaine based on trial

testimony. Using the conversion tables found at § 2D1.1(c)

of the Sentencing Guidelines, the PSR converted the quantity

of each drug into an equivalent quantity of marijuana,

totalling 10,521,103 grams of marijuana. The PSR also

converted the cash and money orders seized at the Fouts

($51,455) and Gillam Way ($43,020) houses into an

56 UNITED STATES V. GADSON

equivalent amount of powder cocaine, using a ratio of

$40,000 per kilogram. The total amount of powder cocaine

calculated in this manner was 2.27 kilograms. The district

court expressly adopted the PSR’s factual findings.

Gadson argues that the district court made three errors in

calculating the drug quantity. First, he contends that the

district court erred in failing to make an express factual

finding that Gadson could reasonably foresee that all the

drugs attributed to him (aside from the drugs seized from his

Gillam Way house) were in furtherance of the jointly

undertaken criminal activity. We disagree. While the

“district court must make an express factual finding regarding

the amount of drugs that the defendant reasonably foresaw as

being part of the conspiracy,” the district court “may satisfy

the requirement that it make factual findings by specifically

adopting the findings of the presentence report,” United

States v. Whitecotton, 142 F.3d 1194, 1198 (9th Cir. 1998), so

long as the PSR includes more than “conclusory statements

unsupported by the facts or the Guidelines,” United States v.

Gamez-Orduño, 235 F.3d 453, 464 (9th Cir. 2000) (internal

quotation marks omitted); see also United States v. Becerra,

992 F.2d 960, 966 (9th Cir. 1993). Gadson’s PSR contained

detailed factual recitations connecting him to the drugs at

issue and establishing that they were part of the conspiracy.

Accordingly, the district court did not err in adopting the PSR

findings as its own.

Second, Gadson claims that the district court erred by

holding him accountable for 90 ounces (2,551.5 grams) of

crack cocaine that Voaklander testified he had purchased

from Joshua Haynes at the Fouts house over a nine-month

period. These sales accounted for the lion’s share of the

drugs attributable to Gadson. The district court did not

UNITED STATES V. GADSON 57

clearly err in making this finding. First, Voaklander testified

that Gadson had been present and observed approximately

half of the transactions. Gadson claims that the district court

erred in relying on Voaklander’s allegedly uncorroborated

and untrustworthy testimony. Nevertheless, because

Voaklander testified under oath, and was subject to full cross-

examination by Gadson’s counsel, the district court could

credit Voaklander’s testimony even though it was

uncorroborated and Voaklander would benefit from his

cooperation with the government. See United States v.

Alvarez, 358 F.3d 1194, 1213 (9th Cir. 2004). Moreover,

other evidence introduced at trial established that Gadson was

involved in the transactions at the Fouts house: he was

regularly present at the house, his fingerprints were found on

a box in the house containing nearly a kilo of cocaine, he

received large sums of cash on two occasions from Joshua

Haynes, who lived at the Fouts house and sold the drugs to

Voaklander, and he complained about how the arrest of

Transporter, who ferried drugs from Anchorage to Fairbanks,

could have “messed everything up.” In light of this

testimony, the district court did not clearly err in finding that

Voaklander’s purchases of crack from Joshua Haynes were

within the scope of the joint undertaking and reasonably

foreseeable to Gadson.

Third, Gadson asserts that it was improper for the district

court to convert the cash found in the Fouts and Gillam Way

houses to marijuana and include the marijuana equivalency

amount in calculating his base offense level. According to

the PSR, the cash seized from the Fouts house was equivalent

to 1.2 kilograms powder cocaine, and the cash seized from

the Gillam Way houses was equivalent to 1.07 kilograms.

Gadson argues that the government failed to prove that all of

the seized currency (converted to 2.27 kilograms of powder

58 UNITED STATES V. GADSON

cocaine) was attributable to him. He also claims that the

currency could have been associated with the sale of drugs

that were already included in his base offense level, leading

to double counting.

Gadson’s argument is unavailing because any error in

attributing the seized currency (converted to 2.27 kilograms

of powder cocaine) to Gadson would be harmless. First, it is

not clear that the 2.27 kilograms of powder cocaine were

included in the calculation of Gadson’s base offense level. In

calculating the marijuana equivalency of the drugs

attributable to Gadson, the PSR converted 6,601.5 grams of

powder cocaine to 1,320,300 grams of marijuana. The

6,601.5 grams is equivalent to the amount of actual drugs

seized from the Fouts (1,977.4 grams) and Gillam Way (.4

grams) houses, and the drugs described at trial (4,623.7

grams). Gadson does not explain how the 2.27 kilograms of

powder cocaine were included in the calculation of his base

offense level. But even if we assume that the PSR had

converted the 2.27 kilograms of powder cocaine into 472,380

grams of marijuana equivalence (2,361.9 grams of power

cocaine converted at a ratio of 1 : 200), and included that

amount in the total amount of drugs attributable to Gadson,

such inclusion would not affect his sentence. Removing the

472,380 grams would reduce the total quantity of drugs

attributable to Gadson from 10,521,103 grams to 10,048,723

grams of marijuana equivalence. This is still 48,723 grams

greater than the minimum quantity of drugs required to

support the base offense level of 36 found by the district

court. U.S.S.G. § 2D1.1(c)(2). Because the base offense

level would be the same with or without the amounts

attributable to the seized currency, any error was harmless.

United States v. Garcia-Guizar, 234 F.3d 483, 491 (9th Cir.

2000).

UNITED STATES V. GADSON 59

2

We now turn to Gadson’s claim that the district court

erred in imposing a three-level sentencing enhancement for

playing a managerial role. See U.S.S.G. § 3B1.1(b). Under

§ 3B1.1(b), an enhancement is required where a defendant

was a “manager or supervisor (but not an organizer or leader)

and the criminal activity involved five or more participants.”

To prove that a defendant played such a role, the government

must demonstrate that the defendant oversaw “one or more

other participants,” meaning persons who are “‘criminally

responsible for the commission of the offense, but [who] need

not have been convicted.’” United States v. Smith, 719 F.3d

1120, 1125 (9th Cir. 2013) (quoting U.S.S.G. § 3B1.1 cmt.

2); see also United States v. Woods, 335 F.3d 993, 1001 (9th

Cir. 2003).

In making this determination, a district court should

consider “the exercise of decision making authority, the

nature of participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger share

of the fruits of the crime, the degree of participation in

planning or organizing the offense, the nature and scope of

the illegal activity, and the degree of control and authority

exercised over others.” Rivera, 527 F.3d at 908 (quoting

U.S.S.G. § 3B1.1 cmt. 4). In particular, “there must be

evidence that the defendant exercised some control over

others involved in commission of the offense [or was]

responsible for organizing others for the purpose of carrying

out the crime.” United States v. Riley, 335 F.3d 919, 929 (9th

Cir. 2003) (alteration in original, internal quotation marks

omitted). The district court need not make any specific

findings as to this issue so long as evidence in the record

supports an inference that the defendant exercised the

60 UNITED STATES V. GADSON

requisite degree of control. United States v. Whitney,

673 F.3d 965, 975 (9th Cir. 2012).

The district court did not clearly err in finding that

Gadson played a managerial role in the drug conspiracy. The

record supports an inference that Gadson “oversaw” a

participant in the offense by the name of “Transporter.”

Transporter was not named in the indictment, but testimony

at trial established that he transported drugs on several

occasions from Anchorage, where Gadson maintained a

residence, to the Fouts house, that his visits to Fairbanks were

coordinated with Gadson’s, and that Gadson complained that

Transporter could have “messed everything up” if he were

arrested. The district court could conclude, based on this

testimony, that Transporter was a “participant” in the criminal

offense, and that Gadson directed him to deliver drugs to

Fairbanks from Anchorage. Cf. United States v. Egge,

223 F.3d 1128, 1132 (9th Cir. 2000) (finding § 3B1.1(b)

enhancement warranted where participant, among other

things, accompanied defendant on trips to pick up drugs);

United States v. Franco, 136 F.3d 622, 631 (9th Cir. 1998)

(finding § 3B1.1(b) enhancement warranted where defendant

asked participant to run an errand for him and to set up a drug

transaction). On those facts, imposition of the managerial

role enhancement was not an abuse of discretion.

B

We next address Wilson’s sentencing claim. The district

court adopted the PSR’s findings and assigned Wilson a base

offense level of 28 based on the quantity of drugs attributable

to him. Wilson claims that the district court erred in denying

him a downward adjustment under U.S.S.G. § 3B1.2 because

UNITED STATES V. GADSON 61

he was “substantially less culpable” than the other

participants. See id. cmt. 3.

A two-level downward adjustment for minor role is

warranted when the defendant was “minor participant in any

criminal activity.” Id. § 3B1.2(b).15 The commentary

explains that a “minor participant” must be a defendant who

was “substantially less culpable than the average participant,”

id. § 3B1.2 cmt. 3(A), but “whose role could not be described

as minimal,” id. § 3B1.2 cmt. 5. The defendant bears the

burden of proving that he was a minor participant by a

preponderance of the evidence. United States v. Rosas,

615 F.3d 1058, 1067 (9th Cir. 2010).

Here, the district court concluded that although Wilson

was clearly not an organizer or leader of the operation, he was

not a minor participant either, citing the fact that Wilson was

one of the group, was trusted enough by Gadson and Haynes

to be left alone at the house with the drugs and the guns, and

was “aligned” with the co-conspirators as demonstrated by

his assault on Pitka. The testimony and evidence discussed

extensively throughout this opinion support the district

court’s conclusion, which means the district court’s

determination that Wilson’s level of involvement was not

minor was not clear error. See United States v. Daychild,

357 F.3d 1082, 1102–03 (9th Cir. 2004) (no clear error where

defendant was directly involved in a central act of the

conspiracy, i.e., the exchange of drugs for money); see also

United States v. Del Toro-Barboza, 673 F.3d 1136, 1155 (9th

15

Wilson also maintains that he could be eligible for a 4-level “minimal”

participant adjustment. The analysis is similar for both categories,

although a minimal participant must make a greater showing of his lesser

complicity. U.S.S.G. § 3B1.2.

62 UNITED STATES V. GADSON

Cir. 2012) (no clear error where defendant failed to provide

any evidence explaining his lesser role in the conspiracy).

VII

Finally, defendants claim that the cumulative impact of

the trial errors warrant reversal. Because we find no

error—and certainly not prejudicial error—reversal is

unwarranted.

AFFIRMED.

BERZON, Circuit Judge, concurring and dissenting:

I concur in the majority opinion except for Part III (B),

concerning Officer Avery Thompson’s testimony as to the

content of the defendants’ recorded telephone calls. As to

Part III (B), the majority’s holdings rest on United States v.

Freeman (Kevin Freeman), 498 F.3d 893 (9th Cir. 2007).

Kevin Freeman, in my view, goes much too far in allowing

lay officer testimony concerning recorded conversations.

Other circuits are considerably stricter than Kevin Freeman

in this regard. In my view, the other circuits are correct, and

Kevin Freeman is wrong. Kevin Freeman should be revisited

by an en banc court, perhaps in this case.

Even accepting Kevin Freeman as binding precedent for

the present, I dissent. I would hold the trial court plainly

erred under Kevin Freeman in admitting some of Officer

Thompson’s testimony, and that the error was prejudicial.

UNITED STATES V. GADSON 63

I.

Defendants challenge Officer Thompson’s testimony

under Federal Rule of Evidence 701, which allows a lay

witness to offer an opinion only if it is (a) “rationally based

on the witness’s perception,” (b) “helpful to clearly

understanding the witness’s testimony or to determining a

fact in issue,” and (c) “not based on scientific, technical, or

other specialized knowledge within the scope of” expert

testimony. Fed. R. Evid. 701. This Court broadly permits an

officer to “interpret[] . . . ambiguous conversations based

upon his direct knowledge of the investigation.” Kevin

Freeman, 498 F.3d at 904. That aspect of Kevin Freeman is,

in my view, wrong, and it is, as the majority recognizes,

inconsistent with the case law in several other circuits. See,

e.g., United States v. Freeman (Marcus Freeman), 730 F.3d

590 (6th Cir. 2013); United States v. Hampton, 718 F.3d 978

(D.C. Cir. 2013); United States v. Johnson, 617 F.3d 286 (4th

Cir. 2010); United States v. Grinage, 390 F.3d 746 (2d Cir.

2004); United States v. Peoples, 250 F.3d 630 (8th Cir. 2001);

see also Maj. Op. at 30–31. The holding should be revisited

by an en banc court.

A.

Kevin Freeman addressed whether a police officer may

testify as both an expert witness concerning coded drug terms

and as a lay witness concerning his general knowledge about

the case. The Court expressed concern “that a case agent who

testifies as an expert receives ‘unmerited credibility’ for lay

testimony,” Kevin Freeman, 498 F.3d at 903 (citation

omitted), but held that “the use of case agents as both expert

and lay witnesses is not so inherently suspect that it should be

categorically prohibited,” id. at 904. In so holding, Kevin

64 UNITED STATES V. GADSON

Freeman also discussed the scope of permissible lay opinion

testimony by an officer regarding the content of a defendant’s

recorded conversations. It is that portion of Kevin Freeman

which the majority reaffirms, and on which it relies

repeatedly in rejecting defendants’ challenges to Officer

Thompson’s testimony.

In Kevin Freeman, the officer “offered interpretations of

ambiguous conversations that did not consist of coded terms

at all.” 498 F.3d at 902. For example,

[i]n several conversations, [the officer]

interpreted ambiguous phrases such as “that,”

“they,” and “one of them,” to refer to either

money or cocaine. In another conversation,

[he] interpreted [a co-conspirator]’s statement,

“Man, it’s done already” to mean “he’s given

the cocaine to Kevin Freeman and that he’s

received his money for it.”

Id. Similarly, “during one recorded telephone call, [a co-

conspirator] stated that he ‘touched bases with two of those.’

[The officer] testified, without offering an explanation, that

this meant that [the speaker] was able to obtain two kilograms

of cocaine. Id. at 900. “During another recorded telephone

call, Freeman informed [a co-conspirator] that he wished to

get off of the telephone while driving. . . . [The officer]

testified that Freeman’s desire to get off of the telephone was

motivated by a fear of being pulled over and arrested for the

possession of cocaine.” Id.

The Court noted that “in these instances [the officer]

ceased to apply his specialized knowledge of drug jargon and

the drug trade and began to interpret ambiguous statements

UNITED STATES V. GADSON 65

based on his general knowledge of the investigation.” Id. at

902. Kevin Freeman nonetheless held that most of the

officer’s testimony met the requirements of Rule 701,

because his “understanding of ambiguous phrases was based

on . . . several hours of intercepted conversations . . . and

other facts he learned during the investigation,” and the

testimony “proved helpful to the jury in determining what

[the defendant and his co-conspirators] were communicating

during the recorded telephone calls.” Id. at 904–05. In the

Court’s view, the officer’s testimony “did nothing more than

offer one possible framework for understanding the

conversation.” Id. at 902. The Court did not express any

concern about whether the information that formed the basis

of the officer’s testimony came from evidence that had not

been presented to the jury.

B.

Other circuits have severely restricted the ability of

officers to testify on the basis of information not before the

jury. In Marcus Freeman, the Sixth Circuit held that an FBI

agent’s testimony regarding the meaning of the defendant’s

recorded conversations was improper lay opinion testimony

under Rule 701. 730 F.3d at 596–99. The court noted that

“there is a risk when an agent ‘provides interpretations of

recorded conversations based on his knowledge of the entire

investigation . . . that he [is] testifying based upon

information not before the jury, including hearsay, or at the

least, that the jury [c]ould think he ha[s] knowledge beyond

what [is] before them.’” Id. at 596 (citing First, Second, and

D.C. Circuit opinions).

The agent in Marcus Freeman “repeatedly substantiated

his responses and inferences with generic information and

66 UNITED STATES V. GADSON

references to the investigation as a whole.” Id. But he “failed

to explain the basis of his interpretations—what experience

he had that the jurors themselves did not have—and therefore

failed to lay a foundation under Rule 701.” Id. at 597.

Although the agent testified that he had listened to

approximately 23,000 recorded calls, the jury only heard a

small number at trial. Id. at 597–99. The court was

concerned that the jury, “left in the dark regarding the source

of [the agent’s] information,” id. at 596, and with “no way of

verifying his inferences or of independently assessing the

logical steps he had taken,” id. at 597, “likely gave him the

benefit of the doubt in this situation,” id. at 596. Marcus

Freeman held such rootless testimony to be an impermissible

usurpation of the jury’s function. Id.1

The D.C. Circuit reached a similar conclusion in

Hampton, holding that an FBI agent improperly testified

about his understanding of a defendant’s recorded

conversations, where the jury had no way to “verify[] his

inferences or . . . independently reach[] its own

interpretations.” 718 F.3d at 982–83. In that case, the

government acknowledged during its opening statement that

“the recorded telephone calls were ‘very, very cryptic,’” and

that the jury would need help from the agent “to interpret

them.” Id. at 981. The agent then testified that he had

“reviewed every conversation—some 20,000—captured by

the wiretaps, not just the 100 or so recordings admitted into

evidence,” and as a result he had a better understanding of

what was being said than did the jury. Id. The court noted

1

As these quotes show, and contrary to the majority’s account, see Maj.

Op. at 33–34, Marcus Freeman’s primary concern was that the jury was

not provided information as to the source of the officer’s knowledge of the

investigation, not that he did not have the requisite knowledge.

UNITED STATES V. GADSON 67

that under Rule 701, the “[j]urors too must independently

assess the basis of the opinion and scrutinize the witness’s

reasoning. But ‘[w]hen a witness has not identified the

objective bases for his opinion, the proffered opinion . . . does

not help the jury but only tells it in conclusory fashion what

it should find.’” Id. (quoting United States v. Rea, 958 F.2d

1206, 1216 (2d Cir. 1992)).

In Grinage, the Second Circuit was likewise troubled by

“the risk that [the case agent] was testifying based upon

information not before the jury.” 390 F.3d at 750. As in

Hampton and Marcus Freeman, the agent testified that he had

listened to many more recorded conversations than would be

played for the jury, and “some pertinent calls he listened to

‘upwards of 20 plus times.’” Id. at 748. He also repeatedly

“told the jury that his interpretations were ‘based on [his]

knowledge of the entire investigation.’” Id. at 748–49. In

doing so, the court concluded, he “interpreted both the calls

that the jury heard and the calls that the jury did not hear.”

Id. at 750. Moreover, “the agent was presented to the jury

with an aura of expertise and authority which increased the

risk that the jury would be swayed by his testimony, rather

than rely on its own interpretation of the calls.” Id. at 751.

Accordingly, “his interpretations of the calls went beyond

permissible lay opinion testimony under Rule 701(b) because,

rather than being helpful to the jury, it usurped the jury’s

function.” Id.

These cases well identify the dangers of allowing a police

officer — who is not an ordinary lay person — to testify

based on masses of information not described in any detail to

the jury. When our circuit held in Kevin Freeman that an

agent’s “interpret[ation of] ambiguous statements based on

his general knowledge of the investigation” was permissible

68 UNITED STATES V. GADSON

lay opinion testimony, it did not address these risks at all.

498 F.3d at 902.

The majority now reads Kevin Freeman as providing

blanket approval for Officer Thompson’s lay opinion

testimony, even though he failed to explain the basis for his

opinions and often invoked, without any detail as to the

source, his knowledge of evidence not presented at trial. That

understanding — which may well be an accurate reading of

Kevin Freeman — confirms that our case law has sanctioned

a major breakdown in the limits properly placed on lay

opinion testimony. The majority maintains otherwise,

rejecting the holdings in cases such as Hampton, Grinage,

and Marcus Freeman as inconsistent with Rule 701’s

acceptance of lay opinion testimony. Not so.

For one thing, although the majority opinion professes

confidence in the jury’s ability to “identify unreliable [lay]

opinion testimony,” Maj. Op. at 31, enabling case agents to

opine on the basis of information not before the jury, without

sharing that information, the majority deprives the jury of the

information it would need to perform that critical function.

How can the jury be expected to evaluate the reliability of lay

opinion testimony when the “experience [the agent] ha[s] that

the jurors themselves d[o] not have” is not identified for the

jury? Marcus Freeman, 730 F.3d at 597. Of equal

importance: when a case agent is not required to provide the

factual basis for his testimony, the district court has no way

of assessing whether he is “rely[ing] upon [or] convey[ing]

inadmissible hearsay evidence” or other improper bases for

lay opinion testimony. Kevin Freeman, 498 F.3d at 904. The

majority’s holding thus undermines both the foundational

gatekeeping role played by judge and the factfinding role of

jury. Rule 701 does not contemplate such abdication.

UNITED STATES V. GADSON 69

Nor, contrary to the majority’s supposition, is what the

majority permits here, relying on Kevin Freeman, in any way

similar to a lay witness identifying a photograph based on

past contacts with the individual, contacts outside the jury’s

knowledge. See Maj. Op. at 31. There are four reasons at

least why this analogy does not work, and why the testimony

in this case went far beyond the intended confines of the lay

opinion rule, Rule 701.

First, we actually have no idea, nor did the jury or judge,

whether Officer Thompson’s testimony was “rationally based

on [his] perception[s,]” Fed. R. Evid. 701(a), or instead on

what he heard from others — via reports, conversations, and

so on — during the course of the investigation.

Second, Officer Thompson was not testifying to

something of which he had knowledge that the jury did not.

The jury itself heard the tapes, as well as information about

the events constituting the crimes. Officer Thompson was

instead telling the jury the meaning he ascribed to particular

facts and conversations, rather than leaving that

determination to the jury.

Third, a police officer is not an ordinary lay witness. He

is associated directly with the prosecution, and is likely to be

regarded as enjoying special authority or expertise, even if

not testifying as an expert witness. His interpretation, when

premised, as here, on asserted vast knowledge beyond the

jury’s ken, is likely to be accorded more weight than that of

the usual percipient witness whose ability to provide coherent

testimony Rule 701 was meant to preserve.

Finally, Officer Thompson’s statements regarding the

technologically improved means by which he listened to the

70 UNITED STATES V. GADSON

tapes, see infra pp. 70–73, indicates that his testimony does

not meet the third requirement of Rule 701 — that it “not [be]

based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.” Fed. R. Evid. 701(c); see also

United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002)

(identifying, as a requirement of Rule 702, that “the subject

matter at issue must be beyond the common knowledge of the

average layman”). Perception using specialized equipment is

not the sort of lay opinion at which Rule 701 is directed. A

professional photographer who was able to identify an

individual in a photograph only after amplifying the details

through the use of specialized equipment would not be giving

lay opinion testimony, even though he was in the end

reporting his own (amplified) perceptions.

C.

This case illustrates the pitfalls of a regime in which

officers are permitted to testify as lay witnesses on the basis

of information derived from the investigation as a whole, not

all of which is before the jury, using specialized equipment

and methodologies not available to the jury.2

All parties acknowledge the recordings were of poor

quality. Officer Thompson began his testimony by “let[ting]

2

It is important to note that unlike in prior cases challenging an officer’s

interpretation of recorded conversations, the parties here have not

provided this Court with any recording or transcript of the telephone calls

at issue. The Court has only a transcript with the notation “(Audio

played)” followed by Officer Thompson’s testimony interpreting that

audio. The majority thus relies entirely on Officer Thompson’s own

testimony in holding that the recorded statements were “vague” and that

Officer Thompson’s opinions “would provide helpful context” for jury.

Maj. Op. at 35.

UNITED STATES V. GADSON 71

the jury know” that “sometimes the jail phone calls are kind

of hard to . . . hear” and “sometimes it might be a little bit

hard to understand.” “[S]ometimes they’re just fuzzy,” and

“the volume’s not so good on them.” The prosecution asked

whether Officer Thompson could “direct us to what [he]

w[as] hearing” “[i]f it’s not a real clear – when we try to play

it over the system.” And throughout the trial, because the

statements were not always “clear on the recording” the

prosecution often asked Officer Thompson what particular

participants were “saying here?”

Officer Thompson also repeatedly vouched for his

understanding of the recordings because he had “a better way

of listening to” them than the jury. Specifically, Officer

Thompson told the jury that prior to the trial he listened to the

recordings “a lot of the times, . . . pushing the headphones

into my ears, and slowing some of the phone calls down.” In

addition to having been able to “control . . . the phone calls”

by “play[ing] it back three seconds and listen[ing] to it

again,” Officer Thompson was also able to “sit down [in] a

super- — super-quiet room” when listening to the recordings.

As a result, Officer Thompson “was confident [he] was

hearing it correctly” and “in [his] notes,” which he referenced

repeatedly during trial, he “tried as best as possible to write

down accurate statements.” Officer Thompson thus affirmed

his ability to “translate” the calls if the jury was unable to

hear them clearly.

In light of the poor quality of the recordings, Officer

Thompson’s expressed confidence in his own “translat[ion]”

imbued him “with an aura of expertise and authority which

increased the risk that the jury would be swayed by his

testimony.” Grinage, 390 F.3d at 751. Although the court

instructed the jury that the “[s]tatements made on the phone

72 UNITED STATES V. GADSON

calls are the evidence, not the discussion that counsel and

witnesses have had,” the instruction was an ineffective cure

when the jury was repeatedly reminded that it had a more

limited ability to hear and understand the phone calls than did

the witness. Cf. United States v. Robinson, 707 F.2d 872, 879

(6th Cir. 1983) (holding that it was error to admit tapes

portions of which were entirely inaudible because it caused

the jury to rely too heavily on unreliable transcriptions of the

recorded conversations).

The risk that the jury would improperly defer to Officer

Thompson’s judgment was compounded by his repeated

testimony that he listened to hundreds of hours of recordings

to which the jury was not privy. He told the jury “just so

everyone knows, there’s about 150 hours or so of jail phone

call recordings.” Of those, he “probably listened to a total of

110, 120 of these . . . tapes” and “tr[ied] to maintain notes of

a lot of them.” The jury was then told that it would

“[c]ertainly not” have to “listen to all . . . 150 hours.” It

would only be hearing a “[l]imited number of calls.”

Throughout the trial, Officer Thompson was asked to provide

his interpretation of the calls on the basis of the

“investigation” as a whole, and he frequently invoked his

knowledge of “all of the conversations[.]”

Thus, when the quality of a recording was poor, Officer

Thompson told the jury that he could rely on his extensive

knowledge of other recordings to ensure that he was

translating the call properly. For example, when the

prosecution noted that it “was having trouble hearing” a

particular recording, and asked Officer Thompson to “clarify

what we were hearing there[,]” Officer Thompson stated

“I’ve listened to literally probably in excess of 100 hours of

UNITED STATES V. GADSON 73

conversation, so I’ve got a pretty good grasp on being able to

listen to this[,]” before telling the jury what was being said.

Officer Thompson also directly testified about portions of

the recordings that were not, in fact, played for the jury. For

example, he testified that there is “a very short clip out of the

same phone call,” in which Defendant Willie L. Wilson

“says, ‘Yeah, they got my ring from the house.’” When the

prosecutor attempted to correct Officer Thompson,

suggesting that the clip may have said only “‘They got my

ring[,]’” Officer Thompson responded “I think the clip

actually was cut a little short.” He also testified regarding a

portion of a conversation in which Wilson states that he is

going to “exit[] the line for just a moment” to go and get his

“paperwork,” including a police report. But the prosecutor

decided “to move ahead to where Mr. Wilson is returning

with the paperwork, rather than necessarily listening to him

going and getting the paperwork.” Although the prosecutor’s

decision to skip ahead is understandable to avoid having to

listen to minutes of silence, the jury was asked to trust Officer

Thompson that prior to placing the call on hold, Wilson stated

that he was going to go get his legal paperwork.

As in Marcus Freeman, Officer Thompson “drew

conclusions from the phone calls the jury heard as well as

from . . . other phone calls and . . . evidence the jury had no

access to. In doing so, he infringed upon the role of the jury

to decide what to infer from the evidence, and instead told

them what conclusions and inferences to draw.” 730 F.3d at

598. In light of Officer Thompson’s repeated invocation of

recordings not in evidence “the jury was left to trust that he

had some information—information unknown to them—that

made him better situated to interpret the words used in the

calls than they were.” Id. at 597.

74 UNITED STATES V. GADSON

Notably, when questioned on cross-examination whether

a particular phrase frequently used by Wilson “could be

interpreted [in] any number of different ways,” Officer

Thompson stated “I think out of context, it certainly could be.

I think if you placed it in context with the prior statements

and the statements made after that,” not all of which the jury

had access to, “I think it certainly puts it into a better

perspective.” This testimony was similar to that found

troubling in Hampton, where an agent was asked if it was

possible for someone else — the jury, perhaps — to

understand a statement differently, and he responded “‘[i]f

they just had this portion of the conversation and didn’t know

other things about the investigation and other conversations,

maybe. But I think—anybody who has listened to all of the

calls and is aware of all of the conversations would agree

with me.’” 718 F.3d at 982. As in Hampton, Officer

Thompson’s suggestion that no other interpretation of the

telephone calls would be correct when placed in context —

context unavailable to the jury — created a serious “risk that

the jury w[ould] defer to the officer’s superior knowledge of

the case” and the recordings themselves. Id. at 981.

The recordings’ poor quality, as well as the limited

selection played, left the jury without “the information it

need[ed] to conduct an independent assessment of lay opinion

testimony.” Id. Aside from vague references to “the

investigation” as a whole, Officer Thompson “failed to

explain the basis of his interpretations—what experience he

had that the jurors themselves did not have—and therefore

failed to lay a foundation under Rule 701.” Marcus Freeman,

730 F.3d at 597. In Grinage, all 2,000 recorded calls were

admitted into evidence, even though only thirteen were

played at trial. 390 F.3d at 747–48. When the officer in

Grinage gave his opinion based on having “listened to all of”

UNITED STATES V. GADSON 75

the calls, id. at 748, the jury was at least able to listen to the

recordings that informed the officer’s testimony, if it so

desired. Here, by contrast, none of the calls — not even the

ones played during trial — were directly admitted into

evidence.3 Thus when Officer Thompson “interpreted those

conversations on the basis of his listening to ‘all of the calls,’

the jury had no way of verifying his inferences or of

independently assessing the logical steps he had taken.”

Marcus Freeman, 730 F.3d at 597 (quoting Hampton,

718 F.3d at 983). It is understandable that “the jury, left in

the dark regarding the source of [Officer Thompson]’s

information, [would] likely g[i]ve him the benefit of the

doubt in this situation.” Id. at 596. But to allow the jury to

so do is to sanction an abdication of the jury’s duty.

3

It appears that the government failed to preserve excerpts of the

recordings containing only those telephone calls, or portions thereof, that

were actually played at trial. When the jury asked during deliberations to

“review the recordings of all jail phone calls,” the court played only the

audio recording of the trial proceedings in which the telephone calls were

played — essentially, a recording of a recording. The next morning, the

jury asked if it could hear “the original telephone recordings, not the

recordings of the playback?” — presumably because the trial recordings

were even harder to hear than the original tapes. But because the

government had failed to preserve the excerpts, and defense counsel

expressed concern that if allowed access to the full recordings, the jury

might inadvertently hear portions that were never played at the trial, the

court agreed to tell the jury that “the originals were not submitted into

evidence, can’t be provided at this time.”

Although I agree with defendants’ appellate argument that it would

have been prudent for the district court to require the government to

isolate the portions of the telephone calls played at trial and admit them

into evidence, defendants forfeited any argument in this regard by

consenting to the district court’s chosen solution.

76 UNITED STATES V. GADSON

Kevin Freeman allows the jury’s critical factfinding role

to be usurped by law enforcement testimony based on

evidence not presented at trial. As other circuits have held,

this procedure has no basis in the Federal Rules of Evidence,

undermines trial by jury, and cannot be allowed.4

II.

Even under Kevin Freeman, the admission of some of

Officer Thompson’s testimony was in error.

The bulk of Officer Thompson’s testimony appears to

have involved interpretation of “not only code words but also

common words used in common ways.” Marcus Freeman,

730 F.3d at 598. Kevin Freeman held that an officer’s

interpretation of statements “that were not encoded drug

jargon, but instead were phrases that were more likely to be

understood by the jurors without assistance” violates Rule

701. 498 F.3d at 900.

For example, Kevin Freeman held “not helpful to the

jury,” id. at 905, the officer’s interpretation of one

4

The majority opinion references six other circuits, which it says “allow

officers to provide interpretations of recorded conversations based on their

knowledge of the investigation, subject to various safeguards.” See Maj.

Op. at 27 n.5. A careful review of the cases cited makes clear that they do

not condone what happened here. See, e.g., United States v. Albertelli,

687 F.3d 439, 444–48 (1st Cir.2012) (approving officer’s testimony where

it did not “rely on broad appeals to ‘the totality of the investigation’ but

instead usually pointed to sources of information”); United States v.

Jayyousi, 657 F.3d 1085, 1102–03 (11th Cir. 2011) (approving police

officer’s testimony regarding the meaning of code words used in recorded

telephone calls); United States v. Rollins, 544 F.3d 820, 830–33 (7th Cir.

2008) (same).

UNITED STATES V. GADSON 77

defendant’s “instruct[ion] [to another] to speak with him later

so that they ‘can get all the particulars,’” as being “a

reference to the ‘details,’” id. at 900. Similarly, when one

defendant asked another “how everything had turned out,” we

held unhelpful the officer’s testimony that the defendant “was

asking . . . how did the ‘drug deal turn out, how did

everything go?’” Id. This testimony was particularly

troubling because it involved the case agent’s speculation as

to whether the defendant was involved in a drug conspiracy,

the precise issue the jury was required to decide. We noted

in Kevin Freeman that the case agent’s “specialized

knowledge of the particular language of drug traffickers did

not give him carte blanche to testify as to the meaning of

other words in recorded telephone calls without regard to

reliability or relevance.” Id. at 904.

In this case, Officer Thompson translated phrases that

were similarly “likely to be understood by the jurors without

assistance.” Id. at 900. For example, much of Officer

Thompson’s testimony appears to have involved simply

repeating the words said on the recorded telephone calls, in

case the jury “couldn’t hear it.” Other testimony consisted of

Officer Thompson’s speculation as to the meaning of

statements made up of clear terms. For example, during one

of the calls, Wilson said something to the effect of “whoever,

the CI [(confidential informant)] is, it’s close.” When asked

what Wilson meant by that, Officer Thompson stated he

meant “close to them” physically, as opposed to “close to

reality or close to actuality.” This testimony amounts to pure

speculation on the part of Officer Thompson as to what

Wilson meant when he said the CI was “close.” Although

Officer Thompson’s interpretation was a reasonable one, it

was unhelpful to the jury, which had the same ability — and

the responsibility — to interpret such ordinary language.

78 UNITED STATES V. GADSON

Similarly, in a recorded call the day after the altercation

with Donny Pitka, Wilson is described as having said, “‘You

know, he’s the one that started this shit.’ . . . ‘That time with

Batman, that was him.’” Officer Thompson then explained

to the jury that “Batman” is a nickname for alleged co-

conspirator, Brandon Haynes. This testimony, which was

derived directly from his knowledge of the investigation and

was not within the jury’s own powers of reason, would be

permissible under Kevin Freeman. 498 F.3d at 901–02

(approving testimony regarding coded drug jargon). Officer

Thompson went on, however, to explain, “[i]t appears that

[Wilson]’s referring back to the November incident, where

Mr. Pitka was in fact . . . the one who was setting up the

purchase from Mr. Brandon Haynes.” This statement usurped

the jury’s function, even under Kevin Freeman’s limited

acknowledgment of that function. Once informed that

Batman was, in fact, Brandon Haynes, the jury was more than

capable of interpreting Wilson’s statement without the

assistance of Officer Thompson.

As Officer Thompson’s testimony consisted largely of

“either speculation or repetition of already clear statements,”

its admission violated Rule 701 as interpreted by this court.

Kevin Freeman, 498 F.3d at 905.

III.

Although the district court’s error was plain, relief is not

warranted unless the error “affected substantial rights” and

“seriously affected the fairness, integrity, or public reputation

of the judicial proceedings.” United States v. Vences,

169 F.3d 611, 613 (9th Cir. 1999) (internal quotation marks

and citation omitted). The requirement that an error “‘affect[]

substantial rights’ . . . in most cases . . . means that the error

UNITED STATES V. GADSON 79

must have been prejudicial: It must have affected the outcome

of the district court proceedings.” United States v. Olano,

507 U.S. 725, 734 (1993). On plain error review, the

defendant “bears the burden of persuasion with respect to

prejudice.” Id.

Wilson has met that burden only with respect to his

conviction on Count 7 for retaliation against a witness in

violation of 18 U.S.C. § 1513(b)(2). I therefore dissent only

with respect to Count 7.

Section 1513(b)(2) punishes “[w]hoever knowingly

engages in any conduct and thereby causes bodily injury to

another person . . . with intent to retaliate against any person

for . . . information relating to the commission . . . of a

Federal offense . . . given by a person to a law enforcement

officer. . . .” To convert a simple assault into a § 1513(b)(2)

violation, therefore, the offense must have been committed

with the specific intent to retaliate against a witness for

providing information to law enforcement. See United States

v. Maggitt, 784 F.2d 590, 593–94 (5th Cir. 1986).

Officer Thompson’s “translat[ion]” of and testimony

regarding the recorded phone calls contained the only direct

evidence of Wilson’s intent to retaliate against Pitka for

providing information to law enforcement. Officer

Thompson testified regarding a call between Wilson and his

cousin, Gabriella Haynes, the day after the incident with

Pitka. Officer Thompson testified that Wilson admitted to

having hit “‘Donny’” because “‘he’s the one that started this

shit.’” Officer Thompson testified about another call in

which “Wilson [is] talking about how they put Mr. Pitka’s

name . . . in the paper[,]” meaning “the documents that went

to the jail.” Officer Thompson also told the jury that Wilson

80 UNITED STATES V. GADSON

stated in a call the morning of the assault that “[s]nitches

can’t go into the hallways.” Added to Officer’s Thompson’s

testimony about the informant being “close” and the reference

to the “November incident,” his speculation and professed

“translat[ion]” of these “already clear statements[,]” Kevin

Freeman, 498 F.3d at 905, provided a direct link between the

assault and Wilson’s intent to retaliate against Pitka for being

a “[s]nitch[.]”

Aside from Officer Thompson’s testimony, the evidence

of Wilson’s intent was minimal. Wilson was not present in

the gym when Defendant Anthony Gadson and alleged co-

conspirator Donte Edwards confronted Pitka about being a

“snitch.” Edwards, who testified for the prosecution, never

said that he shared with Wilson his suspicions that Pitka had

been a confidential informant. Pitka himself testified that

Wilson said nothing to him before, during, or after the alleged

assault, and that Pitka did not know why he was attacked.

Although Pitka testified that he later believed it was because

the government “sen[t] paperwork in on me,” he provided no

basis for his speculative conclusion. Without Officer

Thompson’s prejudicial testimony, there is a “reasonable

probability that the jury would not have convicted” Wilson on

Count 7. United States v. Teague, 722 F.3d 1187, 1192–93

(9th Cir. 2013).

Finally, there is no question that Officer Thompson’s

testimony “seriously affected the fairness, integrity, or public

reputation of the judicial proceedings.” Vences, 169 F.3d at

613 (internal quotation marks omitted). In “offer[ing] a

narrative gloss . . . consist[ing] almost entirely of [his]

personal opinions of what the conversations meant[,]”

Peoples, 250 F.3d at 640, Officer Thompson’s unhelpful

testimony “usurped the function of the jury to decide what to

UNITED STATES V. GADSON 81

infer from the content of the calls,” Grinage, 390 F.3d at 750.

Nothing could be more central to the integrity of judicial

proceedings than the right to have the jury — not the police

or the prosecution — decide a defendant’s guilt or innocence.

For these reasons, I dissent from Part III (B) of the majority

opinion.