United States v. Henry Williams

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2016 Decided July 8, 2016

No. 13-3019

UNITED STATES OF AMERICA,

APPELLEE

v.

HENRY BRANDON WILLIAMS,

APPELLANT

Consolidated with 13-3035, 14-3012

Appeals from the United States District Court

for the District of Columbia

(No. 1:11-cr-00129-11)

(No. 1:11-cr-00129-2)

(No. 1:11-cr-00129-1)

Stephen C. Leckar, Edward C. Sussman, and Julian S.

Greenspun, all appointed by the court, argued the causes and

filed the joint briefs for appellants.

Nicholas P. Coleman, Assistant U.S. Attorney, argued

the cause for appellee. With him on the brief were Elizabeth

Trosman and Zia Faruqui, Assistant U.S. Attorneys.

2

Elizabeth H. Danello, Assistant U.S. Attorney, entered an

appearance.

Before: ROGERS, PILLARD and WILKINS, Circuit

Judges.

TABLE OF CONTENTS

Introduction ............................................................................. 2

I. Facts and Prior Proceedings............................................. 4

II. Wiretap Issues ................................................................ 13

III. Lay Opinion Testimony ................................................. 32

IV. Wired Plea Agreement ................................................... 50

V. Acquitted Conduct in Sentencing .................................. 53

Conclusion ............................................................................ 54

Introduction

PER CURIAM: Henry Williams, Gezo Edwards, and

William Bowman appeal their convictions by a jury of

participation in a cocaine distribution scheme between

January 2009 and April 2011. Following a multiyear

investigation conducted by the Federal Bureau of

Investigation (“FBI”) and local police, Appellants and eleven

other individuals were indicted on various federal drug

offenses. Williams, Edwards, and Bowman were indicted for

conspiracy to distribute and possess with intent to distribute

cocaine. Bowman and Edwards also were indicted for

multiple counts of using, carrying, and possessing a firearm

3

during a drug trafficking offense. And Bowman was indicted

for several counts of distribution of cocaine. Of the fourteen

individuals named in the original indictment, only Williams,

Edwards, and Bowman went to trial. The jury found all three

Appellants guilty of drug conspiracy, found Bowman guilty

of two firearms possession charges and three cocaine

distribution charges, and acquitted Edwards of the firearms

charges. Williams was sentenced to fifty-one months in

prison, Bowman to forty-five years in prison, and Edwards to

life imprisonment.

Appellants challenge their convictions on multiple

grounds:

(1) They contend that a series of wiretaps used by the

Government to uncover the criminal scheme at issue

here were attained improperly, in violation of both the

Fourth Amendment and relevant statutes, and that the

district court erred in refusing to suppress all

evidence gained from those wiretaps.

(2) Williams contends that the district court erred in

admitting portions of the lay opinion testimony

provided by FBI Special Agent John Bevington, who

was involved in the underlying investigation.

(3) Williams argues that the district court improperly

denied his motion for a judgment of acquittal,

because there was insufficient evidence to support his

conviction.

(4) Williams challenges the district court’s denial of

requests to instruct the jury on multiple conspiracies

and to give a limiting instruction concerning

Bowman’s and Edwards’s bad acts.

4

(5) Williams also contends that the district court erred in

denying his motion to sever his trial from that of

Bowman and Edwards.

(6) Bowman contends that the Government violated his

Fifth Amendment due process rights by improperly

“wiring” his plea agreement to a plea by Williams.

(7) Edwards contends that the district court violated his

Fifth and Sixth Amendment rights by increasing his

sentence based on his possession of a firearm even

though the jury had acquitted him of that conduct.

We affirm the judgments of conviction, with one

exception. We hold that the district court erred in admitting

portions of Agent Bevington’s lay opinion testimony and that

this error was not harmless. Therefore, we reverse Williams’s

conviction and remand his case to the district court for further

proceedings. We do not reach Williams’s other challenges to

his conviction other than to hold that the district court did not

err in denying his motion for a judgment of acquittal.

I. Facts and Prior Proceedings

A.

In late 2009, a joint task force of the FBI and the District

of Columbia Metropolitan Police Department began

investigating a suspected cocaine distribution operation based

in Washington, D.C. In an effort to uncover the nature, scope,

and membership of that operation, investigating agents

reviewed pen registers of telephone calls, arranged

undercover drug buys, obtained information from confidential

sources, and conducted extensive physical surveillance. After

concluding that traditional methods alone were insufficient to

investigate the operation, the Government sought, and

eventually obtained, judicial authorization for wiretaps on

5

three separate phone numbers associated with Bowman, who

the Government suspected was a ringleader of the drug

trafficking. See United States v. Edwards, 889 F. Supp. 2d 1,

5-6 (D.D.C. 2012).

The first of those wiretaps, which the Government

obtained on December 7, 2010, authorized the interception of

wire communications over Target Telephone 1 (“TT1”). See

id. at 5. Just a few weeks later, however, the Government

terminated that wiretap due to lack of activity on the TT1

phone line. See id. The Government did not seek

reauthorization of the TT1 wiretap. Instead, it applied for a

separate wiretap on Target Telephone 2 (“TT2”). See id. at 5-

6. Special Agent Timothy Pak submitted an affidavit in

support of the TT2 wiretap, averring that Bowman was

utilizing the TT2 phone line “to discuss and facilitate drug

trafficking in the Washington, D.C. area.” Gov’t’s Jan. 13,

2011, TT2 Wiretap Affidavit (“Jan. 13 TT2 Aff.”) ¶ 7. Agent

Pak’s affidavit asserted that the TT2 wiretap was necessary

because the Government’s “[n]ormal investigative

procedures,” id. ¶ 35 – including the use of confidential

sources and undercover officers, physical surveillance, trash

covers, and pen registers – had failed to reveal the full scope

and nature of the drug trafficking operation. See id. ¶¶ 35-48.

On January 13, 2011, the district court authorized the TT2

wiretap for an initial thirty days. See Edwards, 889 F. Supp.

2d at 6.

At the Government’s requests, the district court granted

three extensions of the TT2 wiretap. See id. The Government

sought the first extension on February 14, 2011, relying on an

updated affidavit from Agent Pak. That affidavit emphasized

that reauthorization of the TT2 wiretap was necessary

because, even after using the TT2 wiretap for a month

alongside traditional investigative tools, agents had yet to

6

uncover the full scope and membership of the drug trafficking

operation. See Gov’t’s Feb. 14, 2011, TT2 Wiretap Affidavit

(“Feb. 14 TT2 Aff.”) ¶¶ 34-55. The district court agreed and

promptly reauthorized the TT2 wiretap for an additional thirty

days. See Edwards, 889 F. Supp. 2d at 6.

On March 11, 2011, the Government requested another

extension of the TT2 wiretap. Agent Pak’s March 11, 2011,

affidavit did not name Edwards – another suspected leader of

the drug trafficking operation – as a potential target of the

TT2 wiretap reauthorization. In that affidavit, Agent Pak

reiterated his belief that the TT2 wiretap remained necessary

to fill evidentiary gaps left by normal investigative

procedures. See Gov’t’s March 11, 2011, TT2 Wiretap

Application (“Mar. 11 TT2 Aff.”) ¶¶ 25-41. The district court

obliged and, on March 11, 2011, reauthorized the TT2 wiretap

for another thirty-day period. See Edwards, 889 F. Supp. 2d

at 6.

The Government then sought and obtained a third and

final thirty-day reauthorization of the TT2 wiretap on April 8,

2011, again based on Agent Pak’s view that the TT2 wiretap

was necessary to investigate the full scope of the drug

trafficking operation. See id.; Gov’t’s April 8, 2011, TT2

Wiretap Affidavit (“Apr. 8 TT2 Aff.”) ¶¶ 31-50.

On March 21, 2011, while the TT2 wiretap was still

operational on its second extension, the Government sought

an order authorizing the interception of wire communications

to and from Target Telephone 3 (“TT3”), another phone

number associated with Bowman. See Edwards, 889 F. Supp.

2d at 6. As in his other affidavits, Agent Pak attested that the

TT3 wiretap was necessary to determine the full nature and

scope of the conspiracy, which called for further investigation

notwithstanding the TT2 wiretap. See Gov’t’s Mar. 21, 2011,

7

TT3 Wiretap Affidavit (“Mar. 21 TT3 Aff.”) ¶¶ 27-43.

Notably, the Government’s TT3 wiretap application was the

first to name Edwards as a possible target of the wiretap. See

id. ¶ 10(c). The district court authorized the TT3 wiretap,

and, on April 15, 2011, reauthorized it for an additional thirty

days. See Edwards, 889 F. Supp. 2d at 6.

Between January and April 2011, investigating agents

employed the TT2 and TT3 wiretaps to intercept numerous

telephone calls between Bowman, Edwards, Williams, and

several other members of the suspected drug trafficking

operation. Toward the end of the investigation, agents

executed search warrants on a storage unit and various

residences connected to Bowman and Edwards and seized

cocaine, drug paraphernalia, several firearms, and

ammunition.

B.

The Government arrested Williams, Edwards, and

Bowman along with several other individuals and indicted

them for various drug-related offenses. The operative

superseding indictment charged Williams, Edwards, Bowman,

and several other men with conspiracy to distribute and

possess with intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. § 846. The superseding

indictment also charged Bowman and Edwards with two

counts of using, carrying, and possessing a firearm during a

drug trafficking offense, in violation of 18 U.S.C.

§ 924(c)(1).1 It charged Bowman with an additional count of

firearm possession and three counts of unlawful distribution

1

Those two firearm possession counts were later merged into one

before the case was submitted to the jury.

8

of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C).2

Appellants filed several pretrial motions during the early

stages of the case. Williams moved to sever his trial from that

of his co-defendants. Williams insisted that trying him

alongside co-defendants facing much more serious charges

would risk prejudicial spillover and allow the prosecution to

benefit from guilt by association. The district court denied

that motion, concluding that Williams failed to show a serious

risk that a joint trial would prevent the jury from making a

reliable judgment about his guilt or innocence. Around the

same time, Bowman and Edwards moved to suppress

evidence obtained from the TT2 and TT3 wiretaps on the

ground that, in obtaining judicial approval of the wiretaps, the

Government failed to satisfy the requirements of the Fourth

Amendment and Title III of the Omnibus Crime Control and

Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2510 et seq.

See Edwards, 889 F. Supp. 2d at 4-5.3 The district court

denied those suppression motions. Id. at 18. It held that the

TT2 and TT3 wiretaps, and all subsequent reauthorizations,

satisfied Title III’s “necessity” requirement because

traditional investigative techniques were insufficient to reveal

the full scope of the suspected drug trafficking operation. Id.

at 8-13. The district court further concluded that Appellants

were not entitled to a hearing under Franks v. Delaware, 438

U.S. 154 (1978), because they failed to make a substantial

showing that the purported omissions in the Government’s

2

The superseding indictment also charged Bowman with two

counts of unlawful distribution of five grams or more of cocaine

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

but the Government later dismissed those counts.

3

Williams filed a notice to adopt those motions.

9

wiretap applications were material. Edwards, 889 F. Supp. 2d

at 14-18. Edwards filed more motions, some counseled and

some pro se, reiterating his earlier claims and also arguing

that agents violated Title III’s “naming” and “prior

applications” provisions. The district court denied each of

those motions in a series of written memoranda and orders.

See, e.g., Edwards, 889 F. Supp. 2d at 18-23 (D.D.C. Sept.

16, 2012) (denying pre-trial motion for reconsideration); id. at

23-29 (D.D.C. Oct. 23, 2012) (same); United States v.

Edwards, 904 F. Supp. 2d 7, 9-11 (D.D.C. 2012) (denying pro

se motion for reconsideration); United States v. Edwards, 943

F. Supp. 2d 125, 127-29 (D.D.C. 2013) (denying pro se

motion for new trial and other post-trial motions); United

States v. Edwards, 994 F. Supp. 2d 1, 4-7 (D.D.C. 2013)

(denying pro se post-trial motions); United States v. Edwards,

994 F. Supp. 2d 7, 9-10 (D.D.C. 2014) (same).

In the months leading up to trial, Bowman entered into

plea negotiations. The Government offered Bowman a

“wired” plea deal. Under the initial version of that deal,

Bowman could plead guilty, and the Government would

recommend a prison sentence capped at twenty-three years,

but only if Williams also pleaded guilty to the drug

conspiracy charge. If Williams pleaded guilty, he, in turn,

would face no mandatory minimum and likely would face a

guidelines sentencing range of twenty-seven to thirty-three

months imprisonment. Bowman’s counsel told the court that

Bowman was willing to accept his half of the deal but “would

hope that [the Government] would unwire it” from the

condition that Williams also plead guilty. Status Hr’g Tr. 75

(Sept. 7, 2012). A month later, during jury selection, the

Government offered a revised plea agreement to Bowman.

Under that revised agreement, Bowman could plead guilty to

a sentence of twenty-five years imprisonment, contingent

upon Williams’s acceptance of a plea offer of a thirty to

10

thirty-seven month prison sentence. On the eve of trial,

Bowman’s counsel notified the district court that his client did

“not wish to engage in any discussions with the Government

and does not wish to plead guilty based upon the offer that has

been made to him.” Trial Tr. 7 (Oct. 22, 2012). Williams, for

his part, stated on the record that he also would not accept the

Government’s plea offer.

C.

All three Appellants proceeded to trial. During its case-

in-chief, the Government played audio recordings of phone

calls obtained from the wiretaps, showed numerous

surveillance videos, and presented testimony from

investigating agents, narcotics experts, and cooperating

witnesses. The Government offered evidence to show that

Edwards and Bowman were the leaders of a cocaine-

trafficking network in the Washington, D.C., area. According

to one of the prosecution’s cooperating witnesses, Edwards

and Bowman repeatedly acquired large quantities of cocaine

from California and used cross-country shipping pods to

transport it to the Washington, D.C., area. The evidence

suggested that they stored the cocaine in various locations,

including an apartment in Capitol Heights, Maryland, and

storage facilities in Hyattsville, Maryland. The Government

adduced testimony that Edwards processed, weighed, and

repackaged the cocaine into smaller blocks for resale to mid-

level drug dealers. Bowman, in turn, distributed the

repackaged cocaine to those mid-level dealers, usually on

consignment. Another cooperating witness testified that

Bowman typically would give the drugs to him “on

consignment,” and that he later would pay Bowman back with

the proceeds earned from selling the drugs to individual

customers. Trial Tr. 9, 21 (Nov. 5, 2012, p.m. session). The

prosecution’s evidence, including wiretap recordings and

surveillance videos, also showed that Williams interacted with

11

the other defendants during the early half of 2011. Williams

repeatedly called Bowman between January and March 2011,

and met with Bowman on several occasions in mid-March

2011, including on March 12, March 15, and March 23,

shortly after Bowman and Edwards, on or before March 10,

had received a large shipment of cocaine.

The Government also presented the testimony of FBI

Special Agent John Bevington, one of the lead investigating

officers. On the second day of trial, the district court granted

the Government’s motion to qualify Agent Bevington as an

expert witness “in the interpretation of words and phrases

used by drug traffickers in this particular case.” Trial Tr. 67

(Oct. 24, 2012, a.m. session). In his capacity as an expert on

narcotics terminology, Agent Bevington translated many

“coded” words that appeared in conversations between

Bowman and other members of the alleged drug conspiracy.

Over defense counsel’s objections, the district court also

permitted Agent Bevington to provide lay opinion testimony

interpreting recorded calls between Bowman, Williams, and

other co-conspirators.

D.

At the close of all the evidence, Williams moved for a

judgment of acquittal, chiefly on the ground that the evidence

was insufficient to prove his participation in the charged drug

conspiracy. Drawing all inferences in favor of the

prosecution, the district court orally denied the motion and

found that a reasonable jury could find that Williams

participated in the alleged conspiracy based on the nature and

frequency of his contacts with Bowman. See Trial Tr. 96-97

(Nov. 13, 2012, p.m. session). During the final days of the

trial, Edwards and Williams asked the district court to give a

“multiple conspiracies instruction” to the jury, arguing that

the prosecution’s evidence, at most, established their

12

involvement in a different drug conspiracy from the one

alleged in the superseding indictment. The district court

rejected that request and declined to give the proposed

instruction. See generally Final Jury Instructions, United

States v. Edwards, No. 11-cr-129 (D.D.C.), ECF No. 591.

After resolving other pending trial motions and hearing the

parties’ closing statements, the district court instructed the

jury and then submitted the case to the jury for deliberation.

On November 16, 2012, the jury began its deliberations

and delivered verdicts four days later. The jury found

Bowman, Edwards, and Williams guilty of the drug

conspiracy charge. On that charge, the jury held Bowman and

Edwards responsible for five kilograms or more of cocaine

and held Williams responsible for an amount less than 500

grams. The jury also found Bowman guilty of two firearm

possession charges and all three remaining cocaine

distribution charges. The jury acquitted Edwards on the

firearm possession charge.

During Edwards’s sentencing hearing, the district court

granted the Government’s request for a two-level increase in

Edwards’s guidelines calculation for possession of a

dangerous weapon, pursuant to U.S. Sentencing Guideline

§ 2D1.1(b)(1). Even though the jury had acquitted him on the

firearm possession count, the district court found by a

preponderance of the evidence that Edwards possessed a

firearm in furtherance of the drug trafficking conspiracy. The

district court sentenced Edwards to life imprisonment,

Williams to fifty-one months in prison for the conspiracy

charge, and Bowman to an aggregate prison term of forty-five

years in prison for his offenses. Appellants timely appealed.

13

II. Wiretap Issues

Appellants’ first challenge to their convictions rests on

their contention that many of the Government’s wiretap

applications were flawed, requiring the suppression of all

evidence gained from those wiretaps. They rest that challenge

on four grounds. First, they argue that the district court erred

by refusing to hold a hearing, pursuant to Franks v. Delaware,

438 U.S. 154, to determine whether the Government omitted

material information from its wiretap applications. Second,

they claim that by omitting that information, the Government

violated the necessity requirement of Title III. Third, they

argue that the information the Government did disclose was

insufficient to establish the necessity of the wiretaps. And

fourth, Edwards asserts that the Government unlawfully failed

to name him in its March 11, 2011, wiretap affidavit. After

setting forth the governing legal principles, we address each

of these contentions in turn.

A.

A defendant may seek to suppress the evidence gathered

as a result of wiretap surveillance under two different legal

theories: she can argue that the wiretap violated her rights

under the Fourth Amendment, or that the wiretap failed to

comply with the requirements of Title III. Appellants argue

both here.

1. Appellants’ Fourth Amendment claim is based on the

Supreme Court’s decision in Franks v. Delaware, 438 U.S.

154. Franks involved a defendant’s challenge to a warrant

affidavit that, according to the defendant, contained false

statements. Id. at 157-58. The Court held that “where the

defendant makes a substantial preliminary showing that a

false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the

14

warrant affidavit, and if the allegedly false statement is

necessary to the finding of probable cause, the Fourth

Amendment requires that a hearing be held at the defendant’s

request.” Id. at 155-56. This court has thereafter referred to

such hearings as “Franks hearings.” See, e.g., United States

v. Maynard, 615 F.3d 544, 550-51 (D.C. Cir. 2010); United

States v. Becton, 601 F.3d 588, 594 (D.C. Cir. 2010). To

obtain a Franks hearing, a movant “must show that (1) the

affidavit contained false statements; (2) the statements were

material to the issue of probable cause; and (3) the false

statements were made knowingly and intentionally, or with

reckless disregard for the truth.” Becton, 601 F.3d at 594

(internal quotation marks omitted).

This court has extended Franks to apply not only where

the Government is alleged to have made false statements but

also where a defendant alleges that the Government

“knowingly and intentionally (or with reckless disregard)

omitted a fact that would have defeated probable cause.”

United States v. Glover, 681 F.3d 411, 419 (D.C. Cir. 2012);

accord United States v. Spencer, 530 F.3d 1003, 1007 (D.C.

Cir. 2008) (stating that “suppression also remains ‘an

appropriate remedy if the magistrate or judge in issuing a

warrant was misled by information in an affidavit,’” and

noting that “[t]his latter exception also has been held to apply

under certain circumstances to material omissions” (quoting

United States v. Leon, 468 U.S. 897, 923 (1984))). Although

Franks involved a probable cause determination concerning a

warrant affidavit, this court has applied Franks in the wiretap

context as well. See, e.g., Maynard, 615 F.3d at 550-51;

Becton, 601 F.3d at 597-98.

Yet not just any omission is enough. This court’s

precedent is clear that to implicate the Fourth Amendment,

and to require a Franks hearing, the omission alleged must be

15

such that, had the omitted information been provided to the

authorizing court, it would have altered the court’s conclusion

that the wiretap was necessary. See, e.g., Becton, 601 F.3d at

597 (finding “the Government’s failure to disclose certain

information bearing on the credibility of two confidential

sources” unproblematic where the inclusion of that additional

information “was [not] material” and “would not have

defeat[ed] probable cause” (internal quotation marks

omitted)). If a defendant makes such a showing, she would

then be entitled to a hearing before the district court to

determine whether suppression of that wiretap evidence is

required under the Fourth Amendment. See Franks, 438 U.S.

at 171-72. The court has not resolved whether a district

court’s decision not to hold a Franks hearing is reviewed

under the clearly erroneous or de novo standard of review.

See Becton, 601 F.3d at 594. It is unnecessary to do so here

because, under either standard of review, we would find no

error by the district court.

2. Appellants also contest the wiretaps at issue here by

arguing that the Government failed to comply with the

provisions of Title III in seeking the wiretap.

To approve a wiretap, a judge must determine that the

wiretap is supported by both probable cause and necessity. 18

U.S.C. § 2518(3); Glover, 681 F.3d at 420. Appellants do not

challenge the Government’s probable cause showing,4 but

4

To demonstrate probable cause, the Government must show that

there is probable cause for belief that: (1) “an individual is

committing, has committed, or is about to commit a particular

offense”; (2) “particular communications concerning that offense

will be obtained through such interception”; and (3) “the facilities

from which . . . the wire . . . communications are to be intercepted

16

instead argue that the affidavits the Government submitted to

support its wiretap applications did not demonstrate that each

wiretap was necessary.

To demonstrate that a wiretap is necessary, Title III

requires the Government to provide “a full and complete

statement as to whether or not other investigative procedures

have been tried and have failed or why they reasonably appear

to be unlikely to succeed if tried or to be too dangerous.” 18

U.S.C. § 2518(1)(c). The authorizing court must then

determine that “normal investigative procedures have been

tried and have failed or reasonably appear to be unlikely to

succeed if tried or to be too dangerous” on the basis of this

statement. Id. § 2518(3)(c). This necessity requirement is

satisfied when “traditional investigative techniques have

proved inadequate to reveal the operation’s full nature and

scope.” Becton, 601 F.3d at 596 (internal quotation marks

omitted). In assessing the necessity of a wiretap application,

courts must “giv[e] close scrutiny to applications challenged

for noncompliance and . . . reject[] generalized and

conclusory statements that other investigative procedures

would prove unsuccessful.” United States v. Johnson, 696

F.2d 115, 123 (D.C. Cir. 1982) (quoting United States v.

Williams, 580 F.2d 578, 588 (D.C. Cir. 1978)). “Nonetheless,

the statutory command was not designed to foreclose

electronic surveillance until every other imaginable method of

investigation has been unsuccessfully attempted.” Williams,

580 F.2d at 588 (internal quotation marks omitted). It is

sufficient for the Government to show that “other techniques

are impractical under the circumstances and that it would be

are being used . . . in connection with the commission of such

offense.” 18 U.S.C. § 2518(3)(a)-(b), (d).

17

unreasonable to require pursuit of those avenues of

investigation.” Id. (internal quotation marks omitted).

An “aggrieved person” may move to suppress the

contents of any intercepted communication and any evidence

derived therefrom where “the communication was unlawfully

intercepted.” 18 U.S.C. § 2518(10)(a)(i). This provision

“was not intended to reach every failure to follow statutory

procedures,” but applies where there is a “failure to satisfy

any of those statutory requirements that directly and

substantially implement the congressional intention to limit

the use of intercept procedures.” United States v. Chavez, 416

U.S. 562, 574-75 (1974) (quoting United States v. Giordano,

416 U.S. 505, 527 (1974)). This includes “the statutorily

imposed preconditions to judicial authorization” of a wiretap,

such as necessity. United States v. Donovan, 429 U.S. 413,

436 (1977) (citing 18 U.S.C. § 2518(3)(c)); see also United

States v. Carter, 449 F.3d 1287, 1292-93 (D.C. Cir. 2006).

An affidavit offered in support of a wiretap application

enjoys a “presumption of validity.” Maynard, 615 F.3d at

550 (quoting Franks, 438 U.S. at 171) (concerning affidavits

in support of search warrants). The court reviews an

authorizing court’s necessity determination for abuse of

discretion, but does not give a second layer of deference to a

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

determination. See Glover, 681 F.3d at 419-20. In assessing

a district court’s denial of a wiretap suppression motion, the

court reviews the district court’s legal conclusions de novo

and its factual findings for clear error. United States v.

Eiland, 738 F.3d 338, 347 (D.C. Cir. 2013).

B.

We turn now to Appellants’ arguments seeking to

suppress the evidence derived from the wiretaps.

18

1. Appellants first argue that the district court erred by

refusing to hold a Franks hearing concerning certain

omissions from the Government’s wiretap applications.

Because the omissions were not material, we reject the

argument.

Appellants allege, and the Government does not dispute,

that the Government’s wiretap affidavits did not disclose two

“investigative procedures,” 18 U.S.C. § 2518(1)(c), related to

its investigation of Bowman. First, the Government’s initial

three applications seeking to wiretap Bowman’s TT2 phone

failed to disclose the existence of a pen register5 on TT3,

another of Bowman’s phones. See generally Jan. 13 TT2

Aff.; Feb. 14 TT2 Aff.; Mar. 11 TT2 Aff. The Government

had been operating the TT3 pen register for nearly a year

when it first sought to wiretap Bowman’s TT2 phone, and by

March 2011, when it submitted its third application for a

wiretap on TT2, the Government had recorded over two

thousand activations on TT3. See Mar. 21 TT3 Aff. ¶ 23.

Second, in the March 11 Affidavit, the Government did

not disclose the existence of an additional confidential source,

CS-4, who had known Bowman and Edwards for over ten

years, and who, in late February 2011, informed the

Government that he or she knew that the two were “working

in concert to traffic[] in narcotics.” Apr. 8 TT2 Aff. ¶ 35.

5

“A pen register is a mechanical device that records the numbers

dialed on a telephone by monitoring the electrical impulses caused

when the dial on the telephone is released. It does not overhear oral

communications and does not indicate whether calls are actually

completed.” United States v. N.Y. Tel. Co., 434 U.S. 159, 161 n.1

(1977).

19

Neither of these omissions, however, would have

“defeat[ed] probable cause,” and therefore, the district court

was not required to hold a Franks hearing concerning those

omissions. Becton, 601 F.3d at 597 (quoting Spencer, 530

F.3d at 1007). While pen registers cannot “convey to the

government the substance of [Bowman’s] calls,” Eiland, 738

F.3d at 349, they can nonetheless reveal relevant and

important information. And sometimes they uncover data that

can make a wiretap unnecessary.6 Here, however, Appellants

have not shown that pen register data rendered the wiretaps

unnecessary. See Franks, 438 U.S. at 171-72.

The same is true of the Government’s use of CS-4. CS-4

provided some information to the Government concerning

Bowman and Edwards’s relationship and participation in drug

trafficking. But that information was not sufficient to

6

See, e.g., Smith v. Maryland, 442 U.S. 735, 737 (1979) (police

obtained a search warrant through use of a pen register, where pen

register demonstrated petitioner was responsible for robbing victim

in question after victim began receiving threatening phone calls

from robber subsequent to robbery); United States v. Geraldo, 271

F.3d 1112, 1115 (D.C. Cir. 2001) (describing pen register data as

part of the evidence submitted to a magistrate deemed sufficient to

justify the issuance of a search warrant, without resort to a wiretap);

United States v. Clay, 34 F.3d 1070 (8th Cir. 1994) (unpublished)

(pen register data led to arrest of a drug trafficking co-conspirator

where pen register data linked one co-conspirator to the other);

United States v. Thornton, 746 F.2d 39, 41-42 (D.C. Cir. 1984)

(explaining that pen register data, among other evidence, allowed

law enforcement to secure – without the use of a wiretap – several

search warrants concerning an alleged gambling enterprise based on

the fact that the pen registers showed that numerous calls were

placed to the location in question “within one hour of the prime

gambling period”); United States v. Louderman, 576 F.2d 1383,

1386 (9th Cir. 1978) (pen register data used to prove wire fraud).

20

establish either the source of Bowman’s drugs, or the

hierarchy of his organization. Nor was continued reliance on

CS-4 reasonably likely to reveal that information, which the

Government needed to uncover fully and prosecute

effectively the conspiracy at issue here. Had the Government

disclosed the existence of CS-4, it would not have altered the

authorizing court’s necessity determination, and therefore, the

Government’s omission of that information did not require a

Franks hearing.

2. Appellants next argue that the Government violated

Title III’s necessity requirement, 18 U.S.C. § 2518(1)(c), by

failing to include the omitted information regarding the pen

register on TT3 and confidential source CS-4. We reject

Appellants’ contention that the fruits of the resulting wiretaps

must be suppressed. Although we agree that the Government

could have, and should have, provided the omitted

information discussed above in each relevant wiretap

application, the Government provided the bare minimum

necessary to comply with Title III.

The Government has offered no reason why it could not

have provided the authorizing court with the omitted

information concerning the pen register on TT3 and the

existence of CS-4, consistent with the statutory requirement

of a “full and complete statement.” Id. Both omissions were

relevant to the necessity determination because both shed

further light on the breadth of the Government’s investigation

and the alternative means the Government had to investigate

the conspiracy at issue, short of the invasive option of wiretap

surveillance.

Nonetheless, the Government’s failure to include this

information in its wiretap applications did not violate the

necessity requirement of Title III. The Government informed

21

the authorizing court of the existence of the pen register on

TT2, see, e.g., Jan. 13 TT2 Aff. ¶¶ 30-34, and further

explained why, in this particular case, pen register data was

insufficient to reveal the “full nature and scope” of the

conspiracy. Becton, 601 F.3d at 597; see also id. (finding that

“[t]he Government’s omission of information that a previous

search had yielded incriminating information did not make its

affidavit infirm”); Jan. 13 TT2 Aff. ¶¶ 47-48 (asserting that

while pen registers are useful “in establishing relationships

and patterns of operations, . . . they provide little direct

evidence as to the significance of the telephone calls”). The

activations recorded by the pen register on TT3 were no more

illuminating. Consequently, the inclusion of information

concerning the pen register on TT3 could not have altered the

authorizing court’s necessity determination.

The same is true of the Government’s use of CS-4.

Appellants have not shown that, had the authorizing court

known that CS-4 was aiding the Government in its

investigation, the court would have found necessity lacking

because the available investigative techniques were sufficient

to establish the source of Bowman’s drugs or the hierarchy of

his organization. See supra Part II.B.1. This information

could not have altered the authorizing court’s necessity

determination, and thus the Government was not required to

include it in its wiretap application. To this extent, the

Government’s omission “was not material, because it did not

undermine the government’s ability to prove the need for the

. . . wiretap.” Becton, 601 F.3d at 597 (internal quotation

marks omitted).

By omitting the information concerning the pen register

on TT3 and the Government’s use of CS-4, the Government

did not provide the authorizing court with as complete a

picture of its investigation as it could have, making the

22

authorizing court’s necessity determination potentially less

well-informed. Although we conclude that the Government’s

omissions were not material to Title III’s necessity

requirement, the Government could have, and should have,

included this information in its wiretap affidavits. As the

Supreme Court stated in United States v. Donovan, the “strict

adherence by the Government to the provisions of Title III

would . . . be more in keeping with the responsibilities

Congress has imposed upon it when authority to engage in

wiretapping or electronic surveillance is sought.” 429 U.S. at

440 (quoting Chavez, 416 U.S. at 580). Absent some

persuasive explanation for an omission, we anticipate that the

Government will provide such information to authorizing

courts in the future.

3. Appellants next argue that the information the

Government did disclose in its wiretap application was

insufficient to demonstrate the wiretap’s necessity when

considered in combination with the omission of the pen

register on TT3 and CS-4. We disagree. We have determined

already that the Government’s omission of information

concerning the pen register on TT3 and the existence of CS-4

did not negate the wiretap’s necessity. Appellants fare no

better when those omissions are viewed in combination with

Appellants’ arguments concerning the information that the

Government did include in its wiretap application.

Focusing first on the January 13 Affidavit, Appellants

argue that the wiretap was unnecessary because the

Government’s surveillance of Bowman was bearing fruit and

likely would continue to do so, given that “Bowman was

hardly circumspect” when it came to carrying out his drug

operations. Appellants’ Br. 27-29. In particular, Appellants

highlight several instances when the Government was able to

observe Bowman selling cocaine to undercover operatives

23

and others. See Jan. 13 TT2 Aff. ¶¶ 19-20 (describing two

controlled drug purchases a confidential source made from

Bowman); Trial Tr. 83-84 (Oct. 25, 2012, p.m. session)

(testimony of Government agent recounting his surveillance

of Bowman during a confidential informant’s purchase of

drugs from Bowman). Appellants’ arguments are unavailing.

The Government has adequately demonstrated that such

surveillance and undercover operations were unlikely to

provide it with the information needed to uncover the “full

nature and scope” of the suspected crime at issue, United

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

(quoting United States v. Brown, 823 F.2d 591, 598 (D.C. Cir.

1987)), namely, the source of Bowman’s cocaine, and the

hierarchy of Bowman’s organization. In Becton, the court

similarly found necessity where “normal investigative

procedures ha[d] been probative in proving that an ongoing

illegal narcotics business [wa]s operating” because “the FBI

had been unable to determine the identities of other co-

conspirators who supplied and transported drugs into D.C.

and who assisted in local redistribution using these methods.”

601 F.3d at 596 (internal quotation marks omitted).

Appellants fault the Government for not “squarely

address[ing]” “how well-placed the informants were, or how

close they were to Bowman,” Appellants’ Reply Br. 12, but

the Government persuasively suggests that Bowman was

unlikely to give his customers information about where he

kept his drugs, or who was supplying them to him. Had he

done the former, he would have risked his drugs being stolen.

Had he done the latter, he would have risked having his

customers go straight to his drug source. As the district court

noted, “the fact that Bowman was willing to sell narcotics to

the undercover officer and confidential sources he barely

knew does not negate [the Government’s] observation that

Bowman kept certain information, such as the location of his

24

stash house, from his customers.” Edwards, 889 F. Supp. 2d

at 9; see also Eiland, 738 F.3d at 349 (explaining that the

placement of informants does not demonstrate lack of

necessity because those informants were not close enough to

the core members of the conspiracy to “have access to the

most closely held secrets”); United States v. Fernandez, No.

12-cr-445, 2013 WL 503966, at *2 (S.D.N.Y. Feb. 7, 2013)

(noting that individuals involved in a drug trade “were

unlikely to reveal to an informant the source of their drugs or

the manner in which the narcotics were transported”).

Nor was the Government required in these circumstances

to expect that physical surveillance would provide such

information. The Government notes that there was only so

much surveilling of Bowman it could do before Bowman

might catch on to the surveillance. See Jan. 13 TT2 Aff. ¶ 40

(asserting that “prolonged or regular surveillance of the

movements of the subjects would most likely be noticed,

thereby causing them to become more cautious in their illegal

activities, or to change the manner in which they conduct their

illegal activity, thus further stalling law enforcement efforts”).

And while following Bowman’s movements might have given

the Government some idea of where Bowman kept at least

some of his drugs, the Government’s submissions to the

authorizing court established that continued surveillance

could not be expected to provide it the breadth of

understanding concerning the location of those drugs, nor the

certainty that wiretap surveillance in these circumstances

would likely provide. See United States v. Scurry, 821 F.3d 1,

17-18 (D.C. Cir. 2016) (finding the Government’s use of

physical surveillance insufficient to defeat necessity where

the defendant “took evasive maneuvers to avoid physical

surveillance, [and] consummated drug sales indoors or inside

cars,” and rejecting the defendant’s argument that “the

government could have searched [the defendant’s] known

25

stash house or prosecuted [the defendant] on the evidence of

the controlled narcotics transactions alone”).

Appellants also claim that the disclosed pen register on

TT2 provided the Government with sufficient information to

preclude the need for a wiretap. But as discussed above, the

pen registers at issue here did not reveal, nor was their

continued use reasonably likely to reveal, sufficient

information to render the wiretaps unnecessary.

Accordingly, the authorizing court did not abuse its

discretion by finding the wiretaps sought by the Government

here necessary. To the extent that Appellants contest the

Government’s February 11 Affidavit on the same necessity

grounds as the January 13 Affidavit, we affirm the necessity

determination as to the February 11 Affidavit for the same

reasons.

4. Appellants’ challenge to the Government’s March 11

Affidavit focuses on the Government’s failure to name or

discuss Edwards anywhere in the Affidavit. They assert that

this omission violated Title III’s “naming” and necessity

requirements, and thus request the suppression of the fruits of

the wiretap approved based on that affidavit.

a. Pursuant to 18 U.S.C. § 2518(1)(b)(iv), the

Government is required to include information concerning

“the identity of the person, if known, committing the offense

and whose communications are to be intercepted.” The

Supreme Court has interpreted this provision to require the

identification of an individual if the Government (1) “has

probable cause to believe that the individual is engaged in the

criminal activity under investigation” and (2) “expects to

intercept the individual’s conversations over the target

telephone.” Donovan, 429 U.S. at 428. This naming

requirement applies to individuals placing calls to the target

26

telephone as well as to individuals making calls from the

target telephone. See id. at 424-28. The Supreme Court in

Donovan held that a violation of § 2518(1)(b)(iv) did not

constitute grounds for suppression under § 2518(10)(a)(i),

where the failure to name an individual in the wiretap

application was not made “knowingly . . . for the purpose of

keeping relevant information from the District Court.” 429

U.S. at 436 n.23; see also id. at 439.

Edwards argues that, pursuant to § 2518(1)(b)(iv), the

Government was required to name him in its March 11

Affidavit because the Government at that point had probable

cause to believe both that he was involved in the cocaine

distribution conspiracy at issue and that his communications

would be intercepted by the wiretap. The Government does

not argue that it lacked probable cause that Edwards was

involved in the conspiracy, but instead argues that it had no

reason to expect that the March 11 wiretap would intercept

Edwards over Bowman’s TT2 phone specifically (as opposed

to over Bowman’s TT3 phone).7

7

According to the 2014 edition of the United States Attorneys’

Manual, the Government’s current policy goes beyond the

minimum required by 18 U.S.C. § 2518 by mandating the naming

in all wiretap affidavits of each person “whose involvement in the

alleged offenses is indicated, even if not all those persons are

expected to be intercepted over the target facility or at the target

location.” U.S. Att’ys’ Manual, Crim. Resources Manual, 28

Electronic Surveillance – Title III Applications ¶ E (2014 ed.),

https://www.justice.gov/usam/criminal-resource-manual-28-

electronic-surveillance-title-iii-applications (last visited July 6,

2016). Appellants argue that the Government’s policy therefore

required it to name Edwards in its March 11 Affidavit. However,

such a policy is not judicially enforceable in a criminal case, see

United States v. Kember, 648 F.2d 1354, 1370 (D.C. Cir. 1980), nor

27

By March 2011, the Government had captured pen

register data showing that Edwards and Bowman had been in

constant phone contact for at least a year. See Mar. 21 TT3

Aff. ¶ 23 (displaying a chart cataloging 939 phone activations

between Edwards and Bowman since January 2010).

However, this contact occurred strictly over TT3. Id. At no

point during the three months the Government had been

monitoring TT2 had Bowman received a single call from

Edwards on that phone. As the district court noted, “[d]espite

numerous opportunities to do so, the Defendant has never

contested the Government’s assertion that the pen register on

TT2 did not show any calls between Bowman and telephone

numbers known or believed to be associated with Edwards.”

Edwards, 889 F. Supp. 2d at 21 (internal quotation marks

omitted). Thus, it was reasonable in this context for the

Government to have expected any phone communications that

were going to occur between Bowman and Edwards would

occur over TT3, not TT2.

To get around the Government’s reasonable inferences

from Edwards’s past communication pattern, Edwards

contends that even if he was not likely to call Bowman on

TT2, the Government should have expected to pick up

Edwards’s voice in the background of the TT2 wiretap

because the Government had obtained some evidence

suggesting that Bowman and Edwards had met on at least two

occasions. Although the Government acknowledges that GPS

data showed Bowman near an address associated with

Edwards on two occasions, see Gov’t’s Opp’n Br. at 4, United

States v. Edwards, No. 11-cr-129 (D.D.C. Oct. 20, 2012),

is it relevant to whether the Government had probable cause to

believe that Edwards’s conversations would be captured by TT2.

28

ECF No. 517, Edwards’s argument is nonetheless

unpersuasive. First, it is not clear that Title III’s naming

provision applies to the identity of individuals whose

background conversations might be expected to be overheard

during intercepted wire communications. We have found no

authority on point, nor have the parties provided any.

According to Appellants, “[t]he trial judge correctly

concluded that the naming requirement extends to persons

who might be overheard in the background of an intercept,”

Appellants’ Br. 59 & n.173 (citing Edwards, 889 F. Supp. 2d

at 25-26), but this is incorrect. Although the district court

stated that “the plain language” of 18 U.S.C. § 2518(b)

“would appear to encompass all communications recorded as

a result of the wiretap, regardless of . . . whether the

conversation took place over, or merely in the vicinity of, the

target telephone,” the court also noted that it had been unable

to locate any legal authority on the point, nor had the parties

offered any, and it went on to state that “the Court need not

resolve the scope of the Government’s burden in this respect

because the Defendant failed to show that he should have

been named as a target even if the Donovan requirements

applied to background[] conversations.” Edwards, 889 F.

Supp. 2d at 25-26.

Assuming, without deciding, that such overheard

conversations do implicate Title III’s naming requirement,

Appellants fare no better. Even if Bowman and Edwards

were in the same room, and Edwards was having a

conversation with a third individual at the same time that

Bowman was talking on TT2 to a fourth individual, it is

unlikely that Bowman would stop speaking, and Edwards

would start speaking, at just the right time, such that the TT2

wiretap would clearly pick up Edwards’s conversation and

enable the Government reliably to identify his voice. When

viewed in concert with the fact that the Government had

29

evidence of only a few instances in which Bowman and

Edwards may have met, it was not unreasonable for the

Government to expect that it would not intercept Edwards’s

voice in the background over the TT2 wiretap.

This conclusion is supported by the fact that, during the

period from January through March 2011, the Government

never intercepted Edwards’s voice in the background over

TT2, even during those times when the Government

suspected Bowman and Edwards met. See Edwards, 889 F.

Supp. 2d at 28. Thus, just as the Government lacked grounds

to expect that Edwards would call Bowman on TT2, since he

had not done so during the two and a half months it had

intercepted calls placed from or to TT2, the Government had

no reason on this record to expect that Edwards’s voice would

be captured in the background of a TT2 call.

Edwards also points out that on March 8-9, 2011, the

Government ran an “ELSUR” electronic surveillance database

check to determine whether Edwards had been the subject of

prior intercept orders. The ELSUR check was disclosed in

the wiretap application for TT3 submitted by the Government

on March 21, 2011. Mar. 21 TT3 Aff. ¶ 49. Edwards argues

that this fact lends further support to his contention that the

Government was required to name him in its March 11

wiretap application. At best, the ELSUR check demonstrates

that the Government had probable cause to believe Edwards

was involved in the investigated conspiracy and that the

Government anticipated that he would become a target of a

wiretap. See Edwards, 889 F. Supp. 2d at 20-21. It says

nothing about whether Edwards’s communications were

likely to be intercepted over TT2. Accordingly, this argument

also lacks merit.

30

Edwards also claims that the Government violated 18

U.S.C. § 2518(1)(e) by failing to disclose in its March 11

Affidavit all prior wiretap applications that mentioned

Edwards. However, the prior application requirement applies

only to those individuals who must be named in the wiretap

application in the first place. See 18 U.S.C. § 2518(1)(e)

(requiring the disclosure of previous applications only for “the

same persons . . . specified in the application”). Because the

Government was not required to name Edwards in the March

11 Affidavit, it was also not required to disclose prior

applications naming Edwards.

We therefore hold that the district court did not err in

denying Edwards’s motion to suppress the fruits of the March

11 wiretap. To the extent Edwards seeks a Franks hearing

based on these same naming requirement claims, see

Appellants’ Br. 62-63, 66; Appellants’ Reply Br. 30, we reject

the contention for the same reasons.

b. Appellants jointly argue that the Government’s

omission of any information concerning Edwards from its

March 11 Affidavit, when combined with the wiretap

application’s other alleged deficiencies discussed above, see

supra Parts II.B.1-II.B.3, violated Title III’s necessity

requirement, requiring the suppression of all evidence derived

from the March 11 wiretap. They claim that the

Government’s alleged knowledge about Edwards and his

connection to Bowman proves that the Government knew that

Edwards was the source of Bowman’s supply. The March 11

wiretap, according to Appellants, was therefore unnecessary

because the Government already knew that Edwards was

Bowman’s drug supplier. Appellants are incorrect. Title III’s

necessity requirement obligates the Government to provide “a

full and complete statement” concerning only “whether or not

other investigative procedures have been tried and failed or

31

why they reasonably appear to be unlikely to succeed if

tried.” 18 U.S.C. § 2518(1)(c). Title III does not require the

Government to disclose every individual whom the

Government suspects might be involved in the allegedly

criminal activity. It requires only that the Government name

those individuals “if known, committing the offense and

whose communications are to be intercepted.” Id.

§ 2518(1)(b)(iv).

Appellants contend that had the Government included

information about Edwards in its March 11 Affidavit, it would

have been clear to the authorizing court that no further

wiretap surveillance was necessary because the information

would have demonstrated that the Government already knew

the source of Bowman’s drugs: Edwards. We disagree.

First, it is not clear that the Government had firm

information identifying Edwards as Bowman’s supplier. The

Government acknowledges that “investigators . . . had reason

to suspect Edwards was involved” but maintains that “they

certainly did not have proof he was Bowman’s conduit to

imported cocaine.” Appellee’s Br. 58-59. Without firm

proof, the Government persuasively contends that “holes

remained in the evidence that could only reasonably be filled

by a wiretap.” Id. at 58 (quoting Eiland, 738 F.3d at 349).

Second, even if the Government had included in its

March 11 application discussion of Edwards and had noted its

suspicion that he was Bowman’s source, we are not persuaded

that it would have changed the authorizing court’s necessity

analysis. Appellants claim in conclusory fashion that if the

Government had discussed Edwards in the March 11

application, it would have “caused the district judge to

scrutinize more carefully the March 11th application,”

Appellants’ Br. 55, but Appellants fail to specify how such

32

supposed close scrutiny would have changed the court’s

necessity analysis.

Like Appellants’ other claims concerning the alleged

deficiencies of the Government’s wiretap applications, we

find their arguments concerning the Government’s decision

not to name Edwards in its March 11 Affidavit unpersuasive.

Accordingly, we affirm the district court’s finding that the

Government’s March 11 Affidavit did not violate Title III’s

naming or necessity requirement.

III. Lay Opinion Testimony

Appellants also contend, renewing objections they made

before and during trial, that the district court erred in allowing

lay opinion testimony by FBI Special Agent John Bevington

that circumvented the requirements of Federal Rules of

Evidence 701, 702, and 704. Specifically, they contend that

Agent Bevington’s testimony conflated expert opinion with

lay opinion testimony by presenting as lay testimony

interpretations of audio and video recordings that were clearly

based on his expertise as an FBI agent. This error was not

harmless as to Williams, they contend, because Agent

Bevington’s testimony failed to adhere to limitations on

expert testimony and was used by the Government to

establish Williams’s (and to some extent Bowman’s) guilt.

Our review of the admission of Agent Bevington’s lay

opinion testimony is for abuse of discretion. See United

States v. Williams, 212 F.3d 1305, 1308 (D.C. Cir. 2000).

Our evaluation of the harmlessness of any such error proceeds

under the standard in Kotteakos v. United States, 328 U.S.

750, 764-65 (1946). See Bank of Nova Scotia v. United

States, 487 U.S. 250, 256 (1988). The Government has the

33

burden to show any error was not prejudicial. See United

States v. Smart, 98 F.3d 1379, 1390 (D.C. Cir. 1996).

In view of our opinion in United States v. Hampton, 718

F.3d 978 (D.C. Cir. 2013), which was decided after

Appellants’ trial, the Government concedes that some of

Agent Bevington’s lay opinion testimony was inadmissible

under Federal Rule of Evidence (“FRE”) 701 for failing to

establish the bases for his opinion but maintains that any error

was harmless. We agree and find other error as well. We

therefore conclude that the admission of Agent Bevington’s

lay opinion testimony was error under FRE 701 and that the

error was not harmless as to Williams. Accordingly, we

reverse Williams’s conviction and remand his case to the

district court for further proceedings.

A.

FRE 701 provides that a witness who is not testifying as

an expert may only provide testimony regarding his or her lay

opinion where 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” of the

sort that is properly the subject of expert opinion testimony

under FRE 702. FRE 701 was designed to ensure that any

opinions offered by a lay witness are based on personal,

“first-hand knowledge or observation,” Fed. R. Evid. 701 adv.

comm. note (1972 proposed rule), and “a process of reasoning

familiar in everyday life,” Fed. R. Evid. 701 adv. comm. note

(2000 amend.) (quoting State v. Brown, 836 S.W.2d 530, 549

(Tenn. 1992)). The “prototypical example[s]” of lay opinion

testimony envisioned by the Advisory Committee when

proposing to add subsection (c) were opinions regarding

“items that cannot be described factually in words apart from

inferences,” such as size, degrees of darkness, speed, distance,

34

or whether a person appeared sad or angry. Fed. R. Evid. 701

adv. comm. note (2000 amend.) (quoting Asplundh Mfg. Div.

v. Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3d Cir. 1995)).

The addition of subsection (c) was intended to preclude

litigants from proffering an expert in lay witness’s clothing

and thereby avoid the disclosure and other requirements for

expert opinion testimony under FRE 702. See id. (citing

United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th

Cir. 1997)).

FRE 702 addresses expert testimony. It provides that a

witness who is “qualified as an expert by knowledge, skill,

experience, training, or education” may testify about his or

her opinion where: “(a) the expert’s scientific, technical, or

other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue; (b) the

testimony is based on sufficient facts or data; (c) the

testimony is the product of reliable principles and methods;

and (d) the expert has reliably applied the principles and

methods to the facts of the case.” These factors reflect that

the Supreme Court has placed “gatekeeping” responsibilities

on the trial courts “at the outset” and thereafter during trial to

ensure that expert testimony is sufficiently reliable to help, as

opposed to confuse and hinder, the jury. Daubert v. Merrell

Dow Pharm., Inc., 509 U.S. 579, 592, 597 (1993). The

Advisory Committee contemplated that this could be done

through “[v]igorous cross-examination, presentation of

contrary evidence, and careful instruction,” which it

considered especially important in order to inform the jury of

the limits of expert testimony. Fed. R. Evid. 702 adv. comm.

note (2000 amend.) (quoting Daubert, 509 U.S. at 595). To

facilitate the evaluation of reliability, expert opinion

testimony is subject to disclosure requirements. See Fed. R.

Evid. 703 & 705; see also Fed. R. Civ. P. 26(a)(2); Fed. R.

Crim. P. 16(a)(1)(G). In addition, FRE 704(b) prohibits an

35

expert witness from “stat[ing] an opinion about whether [a]

defendant did or did not have a mental state or condition that

constitutes an element of the crime charged or of a defense”

as such matters “are for the trier of fact alone.”

The court held in United States v. Wilson, 605 F.3d 985,

1026 (D.C. Cir. 2010), that “an individual without

personalized knowledge of a specific drug conspiracy may not

testify about drug topics that are beyond the understanding of

an average juror under Rule 701. Such a witness may be

permitted to testify only as an expert under Rule 702.” Lay

opinion is proper when it is based upon personal knowledge

of events that occurred in the case being tried, because “[a]n

individual testifying about the operations of a drug conspiracy

because of knowledge of that drug conspiracy has

‘particularized’ knowledge and should be admitted as a lay

witness.” Id. On the other hand, “an individual testifying

about the operations of a drug conspiracy based on previous

experiences with other drug conspiracies has ‘specialized’

knowledge and – provided his testimony meets the rule’s

enumerated requirements – should be admitted as an expert.”

Id. The court has “drawn that line because knowledge

derived from previous professional experience falls squarely

‘within the scope of Rule 702’ and thus by definition outside

of Rule 701.” United States v. Smith, 640 F.3d 358, 365

(D.C. Cir. 2011) (quoting FRE 701(c)).

More recently, in Hampton, 718 F.3d at 981-84, the court

held that the district court erred in admitting, over a proper

objection, lay opinion testimony by an FBI agent interpreting

recorded conversations between a defendant and an alleged

co-conspirator without requiring him to disclose the

“objective bases” of his opinion. As a consequence, FRE

701’s requirements were not met and the jury was denied the

information it needed in order to exercise its fact-finding

36

function by independently assessing the FBI agent’s lay

opinion. The court adopted the analysis of the Second Circuit

Court of Appeals stating: “[W]hen a witness has not identified

the objective bases for his opinion, the proffered opinion

obviously fails completely to meet the requirements of Rule

701, first because there is no way for the court to assess

whether it is rationally based on the witness’s perceptions,

and second because the opinion does not help the jury but

only tells it in conclusory fashion what it should find.” Id. at

981 (quoting United States v. Rea, 958 F.2d 1206, 1216 (2d

Cir. 1992)). The court concluded that the proffered bases for

the FBI agent’s opinion – namely, his having listened to “all

of the [recorded] calls” and his “knowledge of the entire

investigation” – was inadequate because its lack of specificity

invited “the risk that he was testifying based upon information

not before the jury, including hearsay” and left the jury with

“no way of verifying his inferences or of independently

reaching its own interpretations” as FRE 701 requires. Id at

982-83 (quoting United States v. Grinage, 390 F.3d 746, 750

(2d Cir. 2004)). Additionally, the court emphasized that

“[j]udicial scrutiny of a law-enforcement witness’s purported

basis for lay opinion is especially important because of the

risk that the jury will defer to the officer’s superior knowledge

of the case and past experiences with similar crimes.” Id at

981-82 (citing Grinage, 390 F.3d at 750-51).

As noted in Hampton, 718 F.3d at 983, the court’s

analysis reflects similar concerns the court has expressed with

regard to the Government’s use of overview and summary

witnesses to anticipate or interpret evidence for the jury, see

United States v. Moore, 651 F.3d 30, 57 (D.C. Cir. 2011),

concerns shared by other circuits, see United States v. Garcia,

413 F.3d 201, 210-17 (2d Cir. 2005); United States v. Casas,

356 F.3d 104, 117-20 (1st Cir. 2004). See also United States

v. Lemire, 720 F.2d 1327, 1348-50 (D.C. Cir. 1983).

37

Subsequent to Hampton, the court held in United States v.

Miller, 738 F.3d 361, 373 (D.C. Cir. 2013), that the admission

of lay opinion testimony by two FBI agents and a detective

who did not “set forth the specific bases (events, other calls,

seizures of contraband, etc.) upon which their opinions rested

. . . other than broad claims about knowledge they had gained

from the investigation” is plain error because the jury had “no

effective way to evaluate their opinions.”

B.

At trial, Agent Bevington provided two forms of opinion

testimony: lay opinion testimony interpreting recorded

conversations and other interactions between the alleged co-

conspirators that he had listened to or observed during the

FBI’s investigation, and expert opinion testimony on “the

interpretation of words and phrases used by drug traffickers.”

Trial Tr. 67 (Oct. 24, 2012, a.m. session). To distinguish

between the two, the prosecutor generally inquired about

Agent Bevington’s “expertise” or “expert opinion” when

seeking expert opinion testimony, and his “experience in this

case” or something similar when seeking lay opinion

testimony. In relation to Williams, however, the prosecutor

did not elicit expert opinion testimony regarding the meaning

of particular words or phrases. Instead, all of Agent

Bevington’s testimony interpreting wiretap recordings of

phone conversations and, in a few instances, surveillance

videos of meetings between Williams and Bowman was

offered as lay opinion testimony. These recorded interactions

between Williams and Bowman involved vague language and

ambiguous conduct, but neither explicitly referred to cocaine

nor showed Williams receiving cocaine from Bowman.

Nonetheless, Agent Bevington’s testimony interpreted them

for the jury as relating to the buying and selling of cocaine.

38

On direct examination, the prosecutor generally asked

what opinion Agent Bevington had regarding the meaning of

a specific recording based on his “experience in the

investigation,” “prior calls that he had listened to in the

investigation,” or something similar. For example, after

playing a wiretap recording of a March 20, 2011, phone

conversation between Bowman and Williams, the prosecutor

asked Agent Bevington: “Based upon your experience with

this investigation and the phone conversations that you’ve

intercepted, do you have an opinion of what Mr. Williams

was referring to when he stated, quote, [‘]I got one that is

going to go as soon as I get it from you and then I’m going to

get the one for me so is two possible?[’]” Agent Bevington

testified: “Yes. He had a customer that wanted a quantity of

cocaine but he also wanted a quantity of cocaine for himself.”

Trial Tr. 52-53 (Nov. 8, 2012, p.m. session).

At times, however, the prosecutor instead asked for

Agent Bevington’s opinion in reference to his review of

specific evidence. For example, after playing a wiretap

recording of a March 12, 2011, phone conversation between

Bowman and Williams, the prosecutor asked: “[B]ased upon

the other interceptions involving Mr. Bowman that we’ve

listened to from March 12th of 2011, and your observations of

the surveillances of Mr. Bowman that day, what did you

understand Mr. Bowman to be referring to when he told Mr.

Williams, quote, ‘I got a couple of other people coming to see

me, but you know what I mean, I don’t want all of you,

everybody to come at the same time’?” Agent Bevington

testified: “He was telling Mr. Williams that he had other

customers that he was going to be meeting with, and he didn’t

want all the customers to arrive at the same time.” Trial Tr.

73-74 (Nov. 8, 2012, a.m. session). On cross-examination,

when defense counsel asked whether his opinions regarding

the meaning of the conversations and interactions between

39

Bowman and Williams were “based on what [he] learned in

this investigation[,]” Agent Bevington testified: “Right, based

on what I overheard on the phone and what I saw in

surveillance, yes.” Trial Tr. 65 (Nov. 9, 2012, a.m. session).

The Government properly concedes in light of Hampton

that some of Agent Bevington’s lay opinion testimony about

Williams’s conversations with Bowman was inadmissible

because the articulated bases for his opinions referred too

generally to Agent Bevington’s knowledge of the

investigation or his review of unspecified phone calls or

surveillance operations. See Appellee’s Br. 75-76. In

Hampton, 718 F.3d at 982-83, Agent Bevington had referred

to having “listened to all of the calls . . . [and] done the

surveillance” and to his “knowledge of the entire

investigation” as the bases for his lay opinion. In Miller, 738

F.3d at 373, the FBI agents and detective similarly claimed to

have based their lay opinion on their “knowledge of the

overall investigation.” Neither explanation was held to be

sufficient under FRE 701. As the prosecutor and Agent

Bevington offered essentially the same objective bases for

Agent Bevington’s lay opinions here as in Hampton and

Miller, the requirements of FRE 701 were not met.

The lay opinion testimony that Agent Bevington provided

in response to questions referencing specific evidence also

failed to conform to the requirements of FRE 701. The

Government views this testimony as properly admitted under

Hampton because “[Agent] Bevington stated that [his]

opinions were based on specific calls and/or surveillance

operations conducted on precise dates.” Appellee’s Br. 75.

In fact, Agent Bevington stated no such thing. Instead, when

asked whether he had an opinion regarding the meaning of

certain conversations and interactions based on his review of

the specified evidence, Agent Bevington stated his

40

interpretation. Nowhere did Agent Bevington establish that

the evidence referenced in the prosecutor’s question was a

factual basis for his lay opinion testimony, let alone a

complete and accurate statement of the bases on which he

relied. Nor could the prosecution’s questions alone

necessarily establish the bases for Agent Bevington’s lay

opinion. Because, on this record, only Agent Bevington had

personal knowledge of what perceptions and reasoning he

relied on in formulating his lay opinion, only he was able to

provide the “sufficient factual foundation” necessary “to

admit lay opinion evidence rationally based on [his]

perception.” Williams, 212 F.3d at 1309 n.6; see also Garcia,

413 F.3d at 211-13 (citing Fed. R. Evid. 602). Hence, FRE

701 requires that “[a] witness . . . identif[y] the objective

bases for his [or her] opinion,” not the attorney directing the

examination. Hampton, 718 F.3d at 981 (emphasis added)

(quoting Rea, 958 F.2d at 1216). Otherwise, the prosecutor

could present rationalizations for Agent Bevington’s lay

opinions on which he may not have actually relied, effectively

vouching for the bases of his lay opinion, misleading the jury,

and defeating the purposes of FRE 701. Even assuming,

notwithstanding limitations on the use of leading questions,

see Green v. United States, 348 F.2d 340, 341-42 (D.C. Cir.

1965), this approach would suffice under FRE 701, the

Government points to no instance in which the prosecutor

elicited testimony from Agent Bevington that his lay opinion

was, in fact, based on the factual foundation stated in the

prosecutor’s question. Nor can such confirmation be inferred

from Agent Bevington’s responses in view of his testimony

on cross-examination that his opinions were based generally

on his observations throughout the investigation. See Trial

Tr. 65 (Nov. 9, 2012, a.m. session).

The requirement that Agent Bevington adequately

disclose the objective bases for his lay opinion stems from the

41

inter-related requirements of FRE 701. Without knowing

what observations and reasoning Agent Bevington relied on in

arriving at his lay opinion, it is doubtful the district court

could determine that his testimony was “rationally based on

[his] perception” as required by FRE 701(a), much less be

confident that his testimony would be “helpful” to the jury in

“clearly understanding the witness’s testimony or to

determining a fact in issue” by assisting it in its fact-finding

role as required by FRE 701(b). Instead, Agent Bevington’s

testimony may have been “based upon information not before

the jury, including hearsay,” thereby potentially “usurp[ing]

the jury’s function” by presenting the conclusion that should

be drawn from facts of which he, but not the jury, was fully

aware. Hampton, 718 F.3d at 983 (quoting Grinage, 390 F.3d

at 750-51). Jurors not informed of the bases for Agent

Bevington’s lay opinion might also have thought that Agent

Bevington “had knowledge beyond what was before them . . .

defer[ing] to the officer’s superior knowledge of the case and

past experiences with similar crimes,” id. at 981-83 (quoting

Grinage, 390 F.3d at 750), rather than independently reaching

their own opinions about the evidence and ultimately about

whether the Government had met its burden of proof. These

risks would not have been mitigated by admitting into

evidence all of the wiretap recordings and other investigatory

materials available to Agent Bevington because the jury

would still have been unaware of what exact perceptions and

reasoning led to his lay opinions. See id. at 983 (citing

Grinage, 390 F.3d at 747-48); see also id. at 984-86 (Brown,

J., concurring). Here, the Government confirmed that not all

of the surveillance videos that Agent Bevington

acknowledged he had reviewed as part of his investigation

were admitted in evidence, implying that his opinions may

have been partly based on information that was not before the

jury. When a witness fails to identify for the jury the specific

observations and inferences on which he grounds each lay

42

opinion, there is no way for the jury to independently evaluate

the testimony.

Additionally, ignorance of the bases for Agent

Bevington’s lay opinion testimony blurs the distinction in

FRE 701(c) between lay and expert opinion testimony. As

the Second Circuit has explained:

In 2001, Rule 701 was amended to provide that

testimony cannot be received as lay opinion if it is

based on scientific, technical, or other specialized

knowledge. Rather, a lay opinion must be the product

of reasoning processes familiar to the average person

in everyday life. . . . The purpose of this final

foundation requirement is to prevent a party from

conflating expert and lay opinion testimony thereby

conferring an aura of expertise on a witness without

satisfying the reliability standard for expert testimony

set forth in Rule 702 and the pre-trial disclosure

requirements set forth in [Federal Rule of Criminal

Procedure] 16 and [Federal Rule of Civil Procedure]

26. Thus, in considering the third prerequisite for lay

opinion testimony, a court must focus on the reasoning

process by which a witness reached his proffered

opinion. If the opinion rests in any way upon

scientific, technical, or other specialized knowledge,

its admissibility must be determined by reference to

Rule 702, not Rule 701.

Garcia, 413 F.3d at 215-16 (internal citations, footnote, and

quotation marks omitted). Allowing opinion testimony

without knowing whether Agent Bevington’s opinion

testimony was based to some extent on scientific, technical, or

specialized knowledge would leave the district court unable to

determine whether the reliability and disclosure requirements

43

of FRE 702 applied. As a result, there was a risk that Agent

Bevington’s opinion testimony may have provided expert

opinion on “a mental state or condition that constitutes an

element of the crime charged” contrary to FRE 704(b).

Furthermore, the Government’s use of Agent Bevington

as a “two-hatted” witness providing closely related lay and

expert opinion testimony exacerbated these risks. Although

the district court instructed the jury on the use of expert

testimony and required the prosecutor to signal in questioning

when Agent Bevington’s expert opinion was being sought, the

manner in which Agent Bevington’s expert and lay opinions

were interspersed during the trial required mental gymnastics

of the jurors in determining when he was testifying as an

expert and when he was not, risking confusion, particularly

absent an adequate explanation of the bases for his lay

opinions to distinguish them from his expert opinions. This

“two-hatted” circumstance is mentioned by Appellants only in

a footnote, see Appellants’ Br. 98 n.315, and on appeal they

do not challenge the jury instructions in this regard, much less

indicate that they sought an instruction to assist the jury in

distinguishing when Agent Bevington was not testifying as an

expert. See United States v. Rhodes, 62 F.3d 1449, 1453-54

(D.C. Cir. 1995), rev’d on other grounds, 517 U.S. 1164

(1996). The fact that an instruction was given on Agent

Bevington’s expert testimony alone could, in these

circumstances, have led the jury reasonably to assume that all

of his opinion testimony was based upon his expertise and not

merely on his own perceptions of events presented to the jury.

For these reasons, we hold that there was a significant

risk that Agent Bevington’s lay opinion testimony assumed an

“aura of special reliability and trustworthiness surrounding

expert testimony,” which may in turn have prejudiced

Williams. United States v. Cruz, 363 F.3d 187, 194 (2d Cir.

44

2004) (quoting United States v. Dukagjini, 326 F.3d 45, 53

(2d Cir. 2002)).

C.

The question remains whether the error in admitting

Agent Bevington’s lay opinion testimony was prejudicial.

Appellants maintain that the error was prejudicial. This

depends on whether, “after examining the record as a whole,”

the court concludes that “[the] error may have had ‘substantial

influence’ on the outcome of the proceeding.” Bank of Nova

Scotia, 487 U.S. at 256 (quoting Kotteakos, 328 U.S. at 765).

That is:

[I]f one cannot say, with fair assurance, after

pondering all that happened without stripping the

erroneous action from the whole, that the judgment

was not substantially swayed by the error, it is

impossible to conclude that substantial rights were not

affected. The inquiry cannot be merely whether there

was enough to support the result, apart from the phase

affected by the error. It is rather, even so, whether the

error itself had substantial influence. If so, or if one is

left in grave doubt, the conviction cannot stand.

Kotteakos, 328 U.S. at 765. In other words, the “harmless

error test . . . is not a mere sufficiency-of-the-evidence

inquiry,” but requires reversal if the properly admitted

evidence is “even slightly ambiguous” and there is any risk

that the error might not be harmless. Smart, 98 F.3d at 1391-

92.

The Government points to the “overwhelming evidence

of Williams’s and Bowman’s guilt” as indicating that Agent

Bevington’s lay opinions were likely unnecessary, an

observation that the district court also made during trial.

45

Appellee’s Br. 79. But unlike the overwhelming physical and

testimonial evidence supporting the convictions of Bowman

and Edwards, eliminating any suggestion their convictions

must be reversed, the evidence against Williams was of a far

lesser order. Agent Bevington conceded on cross-

examination that there was no direct evidence before the jury

that Williams possessed or sold cocaine to third parties or

interacted with co-conspirators other than Bowman. No

witness testified to having bought cocaine from Williams; no

surveillance video showed him handling anything that any

witness identified as cocaine; no audio tape disclosed him

discussing cocaine, or anything that any witness other than

Agent Bevington identified as cocaine; no one testified to

stopping or arresting Williams and finding cocaine in his car,

his home, or otherwise in his possession. See Trial Tr. 66-72

(Nov. 9, 2012, a.m. session).

The prosecutor’s closing argument focused instead on the

interactions between Williams and Bowman as showing “the

same exact pattern” as Bowman’s interactions with others to

whom he was selling cocaine, and told the jurors to “[a]sk

[them]selves” whether “it makes any sense that people would

speak on the phone in the manner that William Bowman and

Henry Williams did” if they were not “discussing drug

trafficking.” Trial Tr. 49-50 (Nov. 15, 2012, a.m. session). In

other words, in the absence of direct evidence of Williams’s

guilt, the prosecutor relied on the inferences jurors were

willing to draw from Williams’s interactions with Bowman,

as reflected in the wiretap and surveillance recordings the jury

had viewed at trial. This is the exact subject addressed by

Agent Bevington’s erroneously admitted lay opinion

testimony, which told the jury to interpret the circumstantial

evidence as showing that Williams was buying cocaine from

Bowman in amounts that indicated his intent to sell drugs to

third parties. Agent Bevington told the jurors not only what

46

he thought, but his opinion of what the evidence showed and

that he had substantial experience in drug conspiracy

investigations and was involved in the FBI investigation that

resulted in Appellants’ indictments. As in Hampton, 718 F.3d

at 984, there was a strong “likelihood that the jurors afforded

[Agent] Bevington substantial authority because of his

expertise and access to information unavailable to them,”

allowing his lay opinion testimony to influence their decision.

Indeed, the district court observed that “the jury’s

determination as to whether or not . . . Williams was a

member of the conspiracy may turn on whether the jury

chooses to credit lay opinions expressed by FBI Special

Agent Bevington, or reach their own conclusions as to the

nature of certain phone calls between Defendants Bowman

and Williams.” Order at 4, United States v. Edwards, 11-cr-

129 (D.D.C. Nov. 12, 2012), ECF No. 561.

Under the circumstances, the court cannot “say, with fair

assurance, . . . that the judgment [as to Williams] was not

substantially swayed by the error” as to render it harmless,

Kotteakos, 328 U.S. at 765, and his conviction for conspiring

to distribute and possess less than 500 grams of cocaine must

be reversed.

D.

The question remains whether Williams can be retried.

Appellants contend that the district court erred in denying his

motion for a judgment of acquittal because of the

insufficiency of the evidence against him. If that is correct,

then he is entitled to a judgment of acquittal and his retrial

would be barred under the Double Jeopardy Clause of the

Fifth Amendment. See Burks v. United States, 437 U.S. 1,

13-17 (1978). Appellants are not correct, however.

47

Viewing the evidence in the light most favorable to the

Government, as the court must, “[a] rational trier of fact could

have found the essential elements of [Williams’s] crime

beyond a reasonable doubt” based on the properly admitted

evidence. United States v. Dykes, 406 F.3d 717, 721 (D.C.

Cir. 2005) (quoting United States v. Arrington, 309 F.3d 40,

48 (D.C. Cir. 2002) (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979))). The court recently declined to decide

whether, in evaluating a claim for insufficient evidence, a

court should consider all the evidence before the jury or only

that evidence not erroneously admitted, see United States v.

McGill, 815 F.3d 846, 927-28 (D.C. Cir. 2016)

(distinguishing Lockhart v. Nelson, 488 U.S. 33, 39-42

(1988)), and because it makes no difference to the conclusion

here, we assume without deciding that the more demanding

standard applies and do not consider Agent Bevington’s

erroneously admitted lay opinion testimony.

To prove the essential elements of a narcotics conspiracy

under 21 U.S.C. § 846, the Government had to show that

Williams “knowingly entered into the . . . conspiracy with the

specific intent to further its objective of distributing

narcotics.” United States v. Gaskins, 690 F.3d 569, 577 (D.C.

Cir. 2012). Such an agreement can be inferred from

circumstantial evidence. See United States v. Gatling, 96

F.3d 1511, 1518 (D.C. Cir. 1996). Even without Agent

Bevington’s lay opinion testimony, there was sufficient

evidence to show Williams’s knowing involvement in the

charged conspiracy. The evidence shows that Bowman and

Edwards received a shipment of cocaine on or about March

10, 2011. As confirmed by wiretap recordings, surveillance

videos, and testimony of cooperating witnesses, Bowman

shortly thereafter began to make arrangements to sell cocaine

to individuals who met him in the vicinity of the “Shrimp

Boat” restaurant and a nearby condominium. Bowman

48

continued to make cocaine sales at these and other locations

for several weeks.

Bowman’s interactions with Williams paralleled

Bowman’s interactions with other alleged co-conspirators. At

trial, wiretap recordings of their phone conversations in

January and February 2011 showed that Williams repeatedly

checked with Bowman regarding the status of some

unspecified event, which Bowman generally indicated had not

yet happened. On March 12, 2011, however, Bowman

phoned Williams to tell him that he could “holler at

[Bowman] in a little bit” near the Shrimp Boat restaurant, but

warned Williams that he had a “couple of other people

coming to see [him]” and “d[id]n’t want . . . everybody to

come at the same time.” Gov’t Ex. 3056A. Bowman and

Williams were videotaped meeting that evening outside the

Shrimp Boat restaurant sitting in Williams’s car.

Bowman and Williams spoke again the morning of

March 15, 2011, and arranged to meet again later that day.

Security footage at a public storage facility where Bowman

and Edwards stored and processed cocaine for distribution

showed Bowman visiting the facility shortly before his

meeting with Williams. Bowman and Williams were later

videotaped meeting outside the Shrimp Boat restaurant.

Williams called Bowman again on March 20, 2011, and

asked if Bowman was “still . . . alright with man” and whether

“two [was] possible,” saying: “I got one that gonna go as soon

as I get it from you, is gonna go, and then I’m gonna get the

one for me.” Gov’t Ex. 3096A. Bowman said it was

possible. In a wiretapped phone conversation the next day on

March 21, 2011, Bowman phoned Moorer, a confessed co-

conspirator of Bowman and Edwards, and told him: “You

know what I just told you? . . . Just add . . . to that one.”

49

Gov’t Ex. 3129A. Moorer testified as a cooperating witness

at trial that this was Bowman requesting that Moorer bring

him more cocaine. A videotape showed Bowman meeting

with Moorer on March 21, 2011, when Moorer provided

Bowman with what Moorer testified were three sixty-two-

gram quantities of cocaine. As Moorer testified at trial:

“When I met [Bowman], he told me . . . two guys wanted

[cocaine]. I guess one of them wanted more.” Trial Tr. 35

(Nov. 2, 2012, p.m. session). In two wiretapped phone

conversations on March 22, 2011, Williams asked Bowman

questions to the effect of: “[B]efore I get rid of this joint . . .

[y]ou . . . good for tomorrow? You got it?” Gov’t Ex.

3107A; see also Gov’t Ex. 3106A. Bowman replied he did.

The next day, March 23, 2011, a surveillance video showed

Bowman and Williams meeting once again in Williams’s car

outside the Shrimp Boat restaurant.

A reasonable juror could infer from this evidence and

evidence regarding Bowman’s sales to other alleged co-

conspirators that Bowman and Williams were engaged in

cocaine trafficking. Unlike in Gaskins, 690 F.3d at 574, on

which Appellants rely, this is not a case in which there was

“no evidence that [Williams] participated in any drug

transactions or conspiratorial meetings . . . [or] was ever

present at or near the” site of the conspiracy’s activities.

Instead, a juror could reasonably find that Bowman was

selling cocaine to Williams based on the timing, nature, and

locations of Bowman’s interactions with Williams. From the

frequency with which he received quantities of cocaine from

Bowman, as well as his March 20 statement (“I got one that

gonna go as soon as I get it from you . . . and then I’m gonna

get the one for me,” Gov’t Ex. 3096A), a reasonable juror

could also find that Williams intended to distribute cocaine to

third parties. And a reasonable juror could find that Bowman

and Williams’s frequent discussion of others who were

50

involved in similar activities with Bowman showed that

Williams had the requisite knowledge of the conspiracy. That

there may be alternative interpretations of the evidence is not

relevant because the court must presume that the jury resolved

any conflicting inferences supported by the record in the

Government’s favor. See Jackson, 443 U.S. at 326.

Accordingly, we hold that the district court did not err in

denying Williams’s motion for a judgment of acquittal.

IV. Wired Plea Agreement

Bowman argues that the Government violated his Fifth

Amendment due process rights by offering him a “wired” plea

deal that was contingent on Williams pleading guilty to the

charged drug conspiracy. According to Bowman, the

Government knew that a jury would only convict Williams if

he was associated with the more culpable Bowman and so

wired Bowman’s plea in a bad-faith attempt to ensure the two

were tried together.

As a threshold matter, the parties disagree over the

applicable standard of review. Bowman contends that his due

process claim is subject to de novo review. Cf. United States

v. Straker, 800 F.3d 570, 629 (D.C. Cir. 2015). The

Government, by contrast, argues that plain error review

applies because Bowman did not raise his constitutional

challenge before the district court. See United States v.

Mahdi, 598 F.3d 883, 888 (D.C. Cir. 2010). We need not

resolve that disagreement because Bowman’s due process

argument fails under either standard. The parties also dispute

whether the Government offered Bowman an opportunity to

accept an “unwired” plea deal conditioned only on his own

cooperation with the Government, rather than on Williams

also pleading guilty. That preliminary factual dispute is

51

immaterial because, as we explain below, the Government’s

“wired” plea agreement was constitutionally permissible.

Bowman’s due process challenge fails under United

States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992). There, the

Government conditioned any plea agreement for the

defendant’s ailing wife on the defendant also pleading guilty.

See id. at 1015, 1020. The defendant accepted that wired plea

deal but claimed that it violated his due process rights by

effectively coercing him into pleading guilty to secure a plea

deal for his wife. See id. at 1020 (citing Fontaine v. United

States, 411 U.S. 213, 214-15 (1973)). The court concluded

that the defendant’s due process argument was meritless and

joined its sister circuits in holding that plea wiring “does not,

per se, offend due process.” Id. The court explained that the

wired plea accepted by the defendant was constitutional

because the Government “had probable cause to arrest and

prosecute both defendants in a related crime, and there [wa]s

no suggestion that the government conducted itself in bad

faith in an effort to generate additional leverage over the

defendant.” Id. at 1021.

There is even less concern on this record than in Pollard

that Bowman was somehow coerced by the Government’s

decision to offer him a plea deal contingent on a co-

defendant’s guilty plea. There is no argument here that the

Government induced Bowman to plead guilty by promising a

shorter sentence for any loved one or spouse. Cf. id. (“We

can understand how it might be thought that a threat of long

imprisonment for a loved one, particularly a spouse, would

constitute even greater pressure on a defendant than a direct

threat to him.”). Nothing in the record suggests that the

Government wired Bowman’s plea in a bad-faith effort to

coerce him into involuntarily accepting a plea or to convict

Williams based on guilt by association. Rather, the

52

Government offered Bowman the opportunity to plead guilty

to a lower sentence if his alleged co-conspirator, Williams,

also pleaded guilty. A plea offer that reflects the

Government’s apparent preference either to accept guilty

pleas from both defendants or, if it must try Williams, to try

Bowman as well provides no basis to conclude that the

Government’s offer was coercive or made in bad faith.

Bowman nevertheless urges us to infer the Government’s bad

faith from the fact that Williams played a much more minor

role in the charged conspiracy. But we decline the invitation

to assign nefarious intent to the Government’s conduct based

on Bowman’s speculation. Bowman also contends that the

wired plea was itself evidence of the Government’s intent to

force Williams and Bowman into a joint trial. The district

court had denied Williams’s request to sever his trial from

that of his co-defendants, thereby authorizing the Government

to proceed against both defendants in the same trial. The

record belies Bowman’s assertion that the wired plea was an

unconstitutionally coercive ploy to try Williams and Bowman

together.

Additionally, the Government had probable cause to

arrest and prosecute both Bowman and Williams for their

participation in the charged drug trafficking conspiracy. As in

Pollard, there is no plausible basis for Bowman’s suggestion

that the Government resorted to “bad faith in an effort to

generate additional leverage” over Bowman and Williams.

Id. In light of the evidence and information gathered from

wiretaps, physical surveillance, and confidential sources, see

supra Parts I & III.D, the arresting agents reasonably

concluded that Bowman and Williams each participated in the

suspected cocaine distribution conspiracy. See generally

United States v. Holder, 990 F.2d 1327, 1328 (D.C. Cir.

1993) (“Probable cause exists if a reasonable and prudent

police officer would conclude from the totality of the

53

circumstances that a crime has been or is being committed.”).

It is undisputed that the Government obtained a valid

indictment charging both Bowman and Williams with

conspiring to distribute cocaine, which “conclusively

determines the existence of probable cause” in their criminal

case. Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975).

Because the Government “had probable cause to [arrest and]

prosecute” Bowman and Williams and “obtained a valid

indictment” against them, “it was entitled . . . to prosecute

[Appellants] fully” or “to offer lenience.” Pollard, 959 F.2d

at 1021. Bowman might have preferred an offer of lenience

in the form of an unwired plea agreement, but he had “no

right to be offered a plea” at all, Missouri v. Frye, 132 S. Ct.

1399, 1410 (2012), much less the particular plea agreement of

his choosing. Accordingly, the Government’s plea offer did

not violate Bowman’s due process rights.

V. Acquitted Conduct in Sentencing

Edwards argues that the district court violated his Fifth

and Sixth Amendment rights by increasing his sentence based

on his possession of a firearm, even though the jury had

acquitted him of that same conduct. Controlling precedent

squarely forecloses that argument, as Edwards correctly

acknowledges. In United States v. Bell, 795 F.3d 88 (D.C.

Cir. 2015), this court stated that “long-standing precedents of

the Supreme Court and this Court establish that a sentencing

judge may consider uncharged or even acquitted conduct in

calculating an appropriate sentence, so long as that conduct

has been proved by a preponderance of the evidence and the

sentence does not exceed the statutory maximum for the

crime of conviction or increase the statutory mandatory

minimum.” Id. at 103 (internal quotation marks omitted); see

United States v. Jones, 744 F.3d 1362, 1369 (D.C. Cir. 2014);

United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir.

54

2008). Because Bell is binding on this panel – and

notwithstanding the serious concerns that some have raised,

see United States v. Bell, 808 F.3d 926, 928-32 (D.C. Cir.

2015) (Millett, J., concurring in denial of rehearing en banc);

id. at 927-28 (Kavanaugh, J., same) – we must reject

Edwards’s constitutional challenge and affirm his sentence.

See LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir.

1996) (en banc).

Conclusion

For the foregoing reasons, we affirm the judgments of the

district court with respect to each Appellant, with the

exception of Williams. Because the district court’s admission

of Agent Bevington’s lay opinion testimony was error under

FRE 701 and that error was not harmless, we reverse

Williams’s conviction and remand the case to the district

court for further proceedings. We therefore need not reach

the question whether the district court erred by refusing to

provide the jury with a multiple conspiracies instruction, issue

limiting instructions concerning specific evidence submitted

against Edwards and Bowman, or sever Williams’s trial from

that of Edwards and Bowman.

So ordered.