United States v. Ernest Glover

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2017 Decided October 10, 2017

No. 16-3011

UNITED STATES OF AMERICA,

APPELLEE

v.

ERNEST MILTON GLOVER, ALSO KNOWN AS FISH,

APPELLANT

Consolidated with 16-3019

Appeals from the United States District Court

for the District of Columbia

(No. 1:07-cr-00152)

Booth Marcus Ripke argued the cause for appellant Helery

Price. Nicholas G. Madiou, appointed by the court, argued the

cause for appellant Ernest M. Glover. On the joint briefs were

Larry Allen Nathans, appointed by the court, and Michael

Edward Lawlor.

Patricia A. Heffernan, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Elizabeth

Trosman, Elizabeth H. Danello, Anthony Scarpelli, and

Bernard J. Delia, Assistant U.S. Attorneys.

2

Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,

and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: Ernest Milton Glover and Helery

Price here appeal the denial of their petitions to vacate their

convictions under 28 U.S.C. § 2255. Appellants were

convicted of conspiracy to possess with intent to distribute and

to distribute one kilogram or more of phencyclidine, commonly

known as “PCP,” 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), & 846,

and were sentenced to the applicable statutory mandatory

minimum of life imprisonment.

This Court has reviewed the underlying criminal

prosecution on a few occasions, including Glover’s and Price’s

direct appeal, see United States v. Glover (“Direct Appeal”),

681 F.3d 411 (D.C. Cir. 2012), and, most recently, an appeal

from the denial of co-defendant Anthony Maurice Suggs’s

§ 2255 habeas petition, United States v. Suggs, 688 F. App’x

17 (D.C. Cir. 2017). The habeas petitions here present two

issues upon which the District Court issued a Certificate of

Appealability: (1) whether counsel was ineffective for failing

to challenge evidence obtained from an electronic surveillance

device unlawfully installed in a vehicle outside of the

authorizing court’s geographic jurisdiction (the “Truck Bug”),

and (2) whether counsel was ineffective for failing to object to

specific instances of case agent John Bevington’s testimony in

which Bevington offered interpretations of evidence reflecting

his knowledge of the investigation as a whole, which this Court

rejected as contrary to Federal Rule of Evidence 701 in the

appeal of a separate conviction arising out of the same

conspiracy, see United States v. Hampton, 718 F.3d 978 (D.C.

Cir. 2013).

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We conclude that counsel did not perform deficiently in

failing to challenge the Truck Bug. In light of that, the

evidence against Appellants was sufficiently strong that

counsel’s failure to object to specific instances of testimony by

Bevington did not prejudice the defense, and we therefore

affirm.

BACKGROUND

Appellants were convicted in a jury trial that took place

between February 11, 2008, and March 13, 2008. In addition

to Price, also known as “Brother,” and Glover, also known as

“Fish” or “Ernie,” targets of the investigation leading to this

prosecution included Anthony “Applejack” or “Ap” Suggs,

James Parker, Glendale Lee, Ernest Glover’s brother Lonnell

Glover, and Ernest Glover’s relative Cornell “Tony” Glover,1

among others. During the trial, FBI case agent John Bevington

testified multiple times, describing the investigation and

providing the foundation for the introduction of surveillance

recordings from two authorizations: a bug installed in

co-conspirator Lonnell Glover’s truck and a wiretap of Suggs’s

cell phone.

The surveillance evidence from the Truck Bug made up a

small, but important, part of the evidence against Glover and

Price. The bug was authorized by Judge Collyer of the District

Court for the District of Columbia. United States v. Lonnell

Glover, 736 F.3d 509, 510 (D.C. Cir. 2013). The FBI affidavit

in support of the warrant for the Truck Bug identified both

Appellants by name as targets of the investigation. The

affidavit stated that the truck was parked at BWI Airport, and

that is where the agents installed the bug.

1

We refer to Lonnell Glover and Cornell Glover by their full

names to avoid confusion with Appellant Ernest Glover.

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The prosecution introduced five recordings from the Truck

Bug at Appellants’ trial – three conversations between Lonnell

Glover and Suggs and one conversation apiece between

Lonnell Glover and two other associates. None of the Truck

Bug recordings captured conversations with Appellants, but

the interlocutors recorded by the Truck Bug discussed them. In

Truck Activation 186, Suggs described to Lonnell Glover that

“Ernie . . . had owed me, you know I was gonna get my paper

from him” and had told Suggs “I might got half and owe you

half.” In Truck Activation 706, Lonnell Glover told Cornell

“Tony” Glover that “Ap just got a 16 for Fish, that there is

moving already,” referring in slang to a quantity of PCP and to

Ernest Glover by his nickname, “Fish.” As to Price, Truck

Activation 91 included a discussion in which Suggs told

Lonnell Glover that he would put “[B]rother” “on hold till you

get back,” despite requests for “halves.” Truck Activation 604

recorded Lonnell Glover and Suggs discussing whether to

“give Brother the old water or the new water,” to make sure

that Brother’s “regular people” were “satisfied happy.” Suggs

told Lonnell Glover that “Brother needs a gallon,” repeating

“Brother, I know what he want a gallon.” This recording from

the Truck Bug was a critical piece of evidence against Price,

since his nickname is “Brother” and “water” is a slang term for

PCP, and the prosecution used the phrase “Brother wants a

gallon” in both the opening and closing arguments. Lonnell

Glover and Suggs also discussed Ernest Glover in their

conversation in Activation 604, with Lonnell saying that

“Fish . . . got to get clean” and Suggs commenting on whether

Ernest Glover was “owing somebody.”

The prosecution also introduced approximately 80 calls

from the Suggs cell phone wiretap, and the testimony about

these recordings occupied a substantial part of the trial. In

many of the calls, Appellants and their associates discussed

getting together in the future or coordinating a

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contemporaneous rendezvous. For example, in Activation 384,

Price told Suggs “come and see me tomorrow. That be

good . . . . I’ll hit you tomorrow. Hit me tomorrow cause them

peoples been pressing me for real. I just ain’t get on top of it.”

In Activation 628, Price and Suggs reacted to viewing FBI

surveillance vehicles when they were on their way to meet one

another. They called off their meeting in apparent suspicion

that they were being surveilled. See Trial Tr. 7:10-9:13 (Feb.

27, 2008, Afternoon Sess.). In other calls recorded by the

Suggs wiretap, Appellants and their confederates discussed

money. For instance, in Activation 2227, Suggs and Glover

discussed money in terms like “tray,” “deuce,” and “piano.” In

Activation 5443, Price left a voicemail for Suggs, requesting

that Suggs answer his phone and adding: “you don’t like a

moola or what?”

The prosecution utilized FBI case agent Bevington to

introduce the recordings from the phone wiretap and the Truck

Bug. Some of the recordings were introduced with minimal

commentary, with Bevington simply providing the time and

date information as foundation. See, e.g., Trial Tr. 73:2-20

(Feb. 21, 2008, Morning Sess.). However, on other occasions,

Bevington testified about the significance of the recorded

communications. For example, after a line of recordings in

which Price and Suggs discussed seemingly random items,

Bevington testified that “book,” “Sister Sister magazine,” and

“information” meant PCP, explaining that “[t]hey’ve changed

the code multiple times. But they’re clearly not talking about

or using the same words to talk about what they’re talking

about.” Trial Tr. 99:3-9 (Feb. 27, 2008, Morning Sess.).

Interpreting a conversation in which Suggs informed Price that

“we should have that apartment cleaned out one day this week

then you can move in there,” Bevington explained his view that

the exchange was “Mr. Suggs letting Mr. Price know that he

should have PCP for sale the following week” based on

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Bevington’s observation “during the course of the investigation

[that] there was never any indication that Mr. Suggs was

renting apartments or owned property.” Trial Tr. 12:16-23

(Feb. 27, 2008, Morning Sess.).

Other evidence against Appellants included significant

physical evidence recovered when police searched Glover’s

residence, including $985 in cash, a dollar bill with a substance

suspected to be heroin, and a digital scale from a bedroom

where Glover’s wallet was found. In the kitchen, police found

baggies, including one baggie containing heroin. In a basement

closet, police found shoeboxes full of small glass bottles, a

turkey baster, objects similar to eyedroppers, funnels, a juice

bottle with the odor of PCP, vanilla extract bottles with the odor

of PCP, a rifle, a shotgun, and ammunition. The District Court

found that the juice bottle contained 178.1 grams of PCP and

the vanilla extract bottles contained 6.2 grams of PCP. The

recovered items were compelling evidence against Glover in

particular, as they connected Glover to the drugs and

contextualized his conversations with Suggs and other co-

conspirators. Except for the heroin and weapons, which were

admitted only against Glover, this evidence also contributed to

the case against Price.

In addition, by stipulation, the jury was told that Glover

was previously convicted of unlawful distribution of PCP,

based on six controlled purchases between April 25, 1994 and

February 13, 1996. Trial Tr. 42:21-43:16 (Feb. 25, 2008,

Morning Sess.). A search executed at Glover’s residence

pursuant to the investigation in Glover’s previous case revealed

seven bottles with trace amounts of PCP. Id. at 43:5-11. This

stipulation, too, was admissible against Glover alone.

Further direct evidence relating more closely to other

co-conspirators added to the case against Glover and Price. The

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FBI investigation conducted two controlled buys of PCP – one

from co-defendant James Parker on January 4, 2007, and one

from Suggs on January 20, 2007. On three separate occasions,

agents videotaped meetings between members of the PCP

conspiracy. And law enforcement ultimately seized significant

quantities of PCP and paraphernalia from the residences of

various co-conspirators, including 7.7 kilograms of PCP from

Suggs’s residence.

The jury convicted Appellants based on this body of

evidence, and Appellants were sentenced to the mandatory

minimum of life imprisonment. This Court affirmed on direct

appeal and described the evidence against Glover and Price as

“extensive” and “voluminous.” Direct Appeal, 681 F.3d at

417, 424.

Certain later developments in the cases of others affiliated

with this conspiracy are relevant to the issues now before us.

After Appellants’ direct appeal was decided, this Court

decided the appeal of Jerome Hampton, another Lonnell

Glover associate convicted in a separate trial. United States v.

Hampton, 718 F.3d 978 (D.C. Cir. 2013). Hampton challenged

the testimony of Agent Bevington as impermissible lay opinion

testimony based on Bevington’s understanding of the

investigation as a whole. The Court agreed, reasoning that

“[w]hen Bevington interpreted those conversations on the basis

of his listening to ‘all of the calls,’ the jury had no way of

verifying his inferences or of independently reaching its own

interpretations.” Id. at 983. The Court noted the “weakness of

the government’s other evidence,” including that there was no

direct evidence tying Hampton to the drugs, and concluded that

the error in admitting Bevington’s opinion testimony was not

harmless because of its “importance . . . to the government’s

case.” Id. at 984.

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In addition, Lonnell Glover’s conviction in a separate trial

was overturned on the basis that the warrant authorizing the

Truck Bug was facially insufficient. The warrant stated that

the FBI could install the device in the District of Columbia, the

District of Maryland, or the Eastern District of Virginia, and

they did so while the truck was parked in Maryland. Lonnell

Glover, 736 F.3d at 510. This Court concluded that the warrant

was unlawful because a judge can only authorize interception

“within the territorial jurisdiction of the court in which the

judge is sitting.” Id. at 514 (emphasis in original) (quotation

marks omitted). The Court held that the failure to preclude the

Truck Bug evidence was plain error, noting that the prejudice

was “indisputable” because “[t]he truck bug recordings were,

in the words of the prosecuting attorney at trial, some of the

‘most incriminating’ and ‘most powerful’ evidence at trial, and

there is a high likelihood that this evidence affected the

outcome.” Id. at 516. The Court remanded for a new trial. Id.

at 517.

LEGAL STANDARDS

This Court reviews de novo a denial of an ineffective

assistance of counsel claim. United States v. Abney, 812 F.3d

1079, 1087 (D.C. Cir. 2016). We measure effectiveness of

counsel by the familiar standard of Strickland v. Washington,

466 U.S. 668 (1984). To show ineffective assistance of

counsel, a defendant must show “that counsel’s performance

was deficient” such that “counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment”

and that “the deficient performance prejudiced the defense.”

Strickland, 446 U.S. at 687. Prejudice requires a “reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different” – that is,

the defendant must show “a probability sufficient to undermine

confidence in the outcome.” Id. at 694. A court can deny an

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ineffectiveness claim on either the deficiency or prejudice

prong. Id. at 697.

“[T]he same standard applies with respect to claims of the

ineffective assistance of appellate counsel.” Payne v.

Stansberry, 760 F.3d 10, 13 (D.C. Cir. 2014). This Court has

recognized that “effective appellate advocacy often entails

screening out weaker issues,” and “a reasonable winnowing of

weaker appellate claims” may include the “decision to forego”

some claims. Id. at 13-14 (quotation marks omitted). Even

where a claim would be subject to plain-error review, however,

counsel may be ineffective for failing to raise an “issue [that]

had a reasonable likelihood of success,” absent a strategic

justification for that decision. Id. at 14.

DISCUSSION

I.

Appellants argue that counsel was ineffective for failing to

seek to suppress the recordings from the unlawfully installed

Truck Bug. The Truck Bug was authorized pursuant to Title

III of the Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. § 2510 et seq. Congress provided that “[a]ny

aggrieved person . . . may move to suppress the contents” of an

“unlawfully intercepted” communication. 18 U.S.C.

§ 2518(10)(a)(i). Appellants’ claim for suppression is based on

Title III’s provision that “‘aggrieved person’ means a person

who was a party to any intercepted wire, oral, or electronic

communication or a person against whom the interception was

directed.” 18 U.S.C. § 2510(11). Appellants argue that this

term includes targets named in an application or order for

surveillance, regardless of whether the surveillance actually

captures said targets’ communication, since a named target is

“a person against whom the interception was directed,” id. We

need not resolve the question of Title III target standing

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because the existence of an entrenched disagreement between

jurisdictions itself answers the Strickland question before us:

counsel was not ineffective for failing to raise a challenge of

uncertain merit based on unsettled law.

The question of so-called “target” standing under Title III

has been litigated since the law’s enactment. In Alderman v.

United States, a Fourth Amendment suppression case, the

Supreme Court held that defendants lack standing to challenge

a search of someone else, reasoning that “suppression of the

product of a Fourth Amendment violation can be successfully

urged only by those whose rights were violated by the search

itself, not by those who are aggrieved solely by the introduction

of damaging evidence.” 394 U.S. 165, 171-72 (1969). The

Court remarked that legislatures could extend the Fourth

Amendment exclusionary rule if they so desired, noting that:

Congress has not done so. In its recent wiretapping

and eavesdropping legislation, Congress has

provided only that an “aggrieved person” may move

to suppress the contents of a wire or oral

communication intercepted in violation of the Act.

Title III, Omnibus Crime Control and Safe Streets

Act of 1968, 82 Stat. 221 (18 U.S.C. § 2518(10)(a)

(1964 ed., Supp. IV)). The Act’s legislative history

indicates that “aggrieved person,” the limiting phrase

currently found in Fed. Rule Crim. Proc. 41(e),

should be construed in accordance with existent

standing rules.

Id. at 175 n.9 (citing S. Rep. No. 1097, 90th Cong., 2d Sess., at

91, 106). A decade later in Rakas v. Illinois, the Supreme Court

specifically declined to extend standing under the Fourth

Amendment to the “target” of a search or seizure. 439 U.S.

128, 135 (1978). In so holding, the Court rejected an argument

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that language in the pre-Title III case Jones v. United States,

362 U.S. 257 (1960), implied standing under the Fourth

Amendment for “one against whom the search was directed.”

Rakas, 439 U.S. at 134-35. Some courts have understood this

progression to undermine target standing under Title III.

According to these courts, the “existent [Fourth Amendment]

standing rules” that Congress incorporated when it enacted

Title III included the rule, later clarified in Rakas, that those

against whom surveillance is directed have no standing unless

they were directly victimized by the Fourth Amendment

violation. See, e.g., United States v. Cruz, 594 F.2d 268, 273

(1st Cir. 1979) (stating that “[w]e have also addressed the

question of who is an ‘aggrieved person’ under [Title III]” and

citing a case discussing Fourth Amendment standing); United

States v. Scasino, 513 F.2d 47, 50 (5th Cir. 1975) (reasoning

that “[u]nder prestatutory fourth amendment law, one does not

have standing to suppress an illegal wiretap unless his

conversations were overheard or the conversations occurred on

his premises”).

But courts disagree. Among them, the Ninth Circuit has

found standing under Title III where “[a defendant’s]

conversations were the target of the surveillance.” United

States v. Oliva, 705 F.3d 390, 395 (9th Cir. 2012). The Sixth

Circuit has implied that being listed as a “Target Subject” on a

wiretap application would confer standing as an “aggrieved

person” under 18 U.S.C. § 2510(11). United States v. Asker,

676 F. App’x 447, 455 (6th Cir. 2017) (noting that in the

conversations the defendant sought to suppress, “[defendant]

was not a party. Nor was he a ‘person against whom the

interception was directed’ . . . . [T]he government’s wiretap

application listed eight ‘Target Subjects’ for monitoring, none

of whom were [defendant].”). Indeed, the District Court in this

case surveyed the case law, as well as the legislative history of

Title III, and suggested that the better reading of Title III allows

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standing for surveillance targets. These courts recognize a gap

where the Supreme Court in Alderman discussed in dicta, but

did not describe, the Fourth Amendment standards that it

attributed to Congress’s enactment of Title III.

Critically, this Court has never itself directly decided

whether targets of surveillance have standing as such under

Title III’s “aggrieved person” definition. In United States v.

Bellosi, upon which Appellants rely in their reply, we discussed

Alderman’s citation of the language in Jones v. United States

referring to “one against whom surveillance was directed” as

one of the Fourth Amendment standing principles with which

Section 2510(11) was “consistent.” 501 F.2d 833, 842 n.22

(D.C. Cir. 1974). But in that case, “the Government d[id] not

allege before us that any of the appellees d[id] not fit within the

statutory definition of an ‘aggrieved person,’” making this

discussion unnecessary for the outcome. See id. at 842. In In

re Evans, witnesses before a grand jury sought disclosure of

surveillance based on “their belief that wiretapping and

electronic surveillance had been directed against them and that

the grand jury’s subpoenas and questions were the fruit of that

wiretap.” 452 F.2d 1239, 1242 (D.C. Cir. 1971). The issue

was whether the parties’ status as grand jury witnesses afforded

standing for them to seek disclosure of surveillance, not

whether that standing turned on the witnesses being “targets”

instead of actual interceptees. In United States v. Williams, this

Court stated that to have standing to challenge surveillance,

“the accused must show that it was directed at Him, that the

Government intercepted His conversations or that the

wiretapped communications occurred at least partly on His

premises.” 580 F.2d 578, 583 (D.C. Cir. 1978). But this

opinion did not explain what “directed at Him” means any

more than the statute elucidates “person against whom the

interception was directed.” Nor did the Court state whether the

defendants were listed targets of the surveillance, the essential

13

fact underlying Appellants’ theory here. Finally, in United

States v. Scurry, we did not reach the question of target

standing under Title III, as the wiretaps at issue in that case

were challenged by the owners of the tapped phones. See 821

F.3d 1, 6 (D.C. Cir. 2016).

As it has never been necessary for this Court to directly

determine whether a person named as the target of a wiretap

application or order is an “aggrieved person” under Section

2510(11) with standing to suppress evidence derived from the

surveillance in question, such suggestions from our cases

touching on this issue are mere dicta.

Our survey of the status of the law on target standing under

Title III resolves the Strickland question before us. The inquiry

for deficiency looks at performance “as of the time of counsel’s

conduct” and accordingly does not require counsel to propound

vanguard arguments to meet the bare minimum required by the

Sixth Amendment. See Maryland v. Kulbicki, 136 S. Ct. 2, 4

(2015) (holding that counsel is not “constitutionally required to

predict” changes in law). Counsel may decide how to

“dedicat[e] their time and focus” in preparing a defense, and

courts cannot second-guess these priorities. Id. We note that

there is no evidence in the record that counsel were ill-prepared

or failed to research the law on this issue. Absent that, and in

light of the deeply unsettled law on the question of standing,

trial counsel did not perform below the constitutional standard

in electing not to challenge the Truck Bug, and appellate

counsel was similarly not deficient in declining to raise the

issue on appeal.

We do not reach Appellants’ purported prejudice with

respect to the Truck Bug evidence because counsel was not

deficient for failing to challenge it.

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II.

The same cannot be said, however, for counsel’s

performance with respect to Agent Bevington’s testimony.

Given the state of the law, as well as the District Court’s

direction on the issue, counsel performed below the

constitutional standard when they failed to challenge specific

instances of Bevington’s impermissible lay opinion testimony,

at trial and on appeal.

In Hampton, we explained that consistent with Federal

Rule of Evidence 701, a case agent may only testify about

“interpretations” of recorded statements of defendants if he

“identifie[s] the objective bases for his opinion” such that the

jury can assess his testimony and that testimony is helpful to

the jury, rather than merely “tell[ing] it in conclusory fashion

what it should find.” 718 F.3d at 981 (quotation marks

omitted). Interpretations based on “knowledge of the entire

investigation” are not permissible lay opinion testimony, since

“the jury ha[s] no way of verifying his inferences or of

independently reaching its own interpretations” of any

recordings not before them. Id. at 983. Rule 701 accordingly

requires both that the witness identify and the jury have access

to the bases for the witness’s opinion and that the witness

refrain from merely directing the jury to draw certain

inferences on those bases.

In this case, it is clear that counsel performed deficiently

in failing to challenge lay opinion testimony by Bevington that

violated Rule 701. Counsel initially objected to the testimony

that Bevington was likely to offer before the witness took the

stand, and the District Court directed counsel that it would be

amenable to objections of that nature, should counsel object

“line by line” to any problematic testimony. See Trial Tr. 8:20,

10:11-13 (Feb. 19, 2008, Afternoon Sess.). The District Court

15

explained its “inbred dislike of having a government agent

trying to tell the jury what a tape means” and its underlying

concern about “how [the case agent is] going to have a better

sense that a hair dryer means drugs than I would . . . . If the

jury doesn’t listen to the tapes and agree with you, Officer

Bevington isn’t going to make one bit of difference.” Id. at

10:1; 9:5-7; 12-13. Despite the District Court’s direction,

counsel did not renew the objection when Bevington testified

about his interpretations of conversations recorded by the

Truck Bug and wiretap. The District Court’s instruction that

such objections were necessary – and would likely be sustained

– was clear, as was the requirement of Rule 701 on which the

objections were based. While we explained this rule in the

Hampton decision after Appellants’ case was tried, counsel had

every reason to revive their objections contemporaneously as

directed during trial based on the plain strictures of the Federal

Rules of Evidence. Prior to trial, the Advisory Committee

Notes accompanying the 2000 Amendments already stated that

“code word[]” opinions are not the proper subject of lay

opinion testimony pursuant to Rule 701. See Fed. R. Evid. 701

Advisory Committee’s Note to 2000 amendment. Thus, trial

counsel was deficient for not raising the issue, and appellate

counsel should have challenged this testimony on direct appeal.

Without objection from Appellants’ counsel, Bevington

testified several times about the meaning of certain words and

phrases used by Appellants and their associates. Bevington

told the jury his interpretation of terms like “Sister Sister

Magazine” and “information” – commonplace terms that made

little sense in the context of the group’s conversations. The

intended meaning of Appellants and their associates in these

conversations was for the jury itself to determine, without the

guiding directives of a government witness whose

interpretation was based on the entirety of the investigation,

information not available to jurors. Bevington’s translations of

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everyday discussions – like the references in Activation 2093

to an apartment being cleaned out – similarly explained for the

jury what they properly should have been left to interpret for

themselves.

Of course, not every explanation about terms used in the

surveillance recordings was problematic. Experts may testify

under Rule 702 about generic slang language with which a jury

may not be familiar. In fact, in Appellants’ direct appeal, this

Court held that it was harmless error for the prosecution to

present Bevington’s testimony about the meaning of slang

terms “such as ‘water’ (PCP), ‘boat’ (marijuana laced with

PCP), ‘16th Street’ (16 ounces), and ‘32nd Street’ (32 ounces)”

without first qualifying Bevington as an expert under Rule 702

because he would have so qualified as a result of his significant

experience investigating drug crimes for the FBI. See Direct

Appeal, 681 F.3d at 422. Bevington also described the use of

cigarettes dipped in PCP to offer customers samples of the

product to explain the discussion in Truck Activation 91, an

acceptable line of expert testimony because it was based on

specialized training and assisted the jury in understanding a

tool of the drug trade with which it might not otherwise be

familiar. Bevington’s opinion testimony about generic slang

terms was well within the scope of his expertise as a field agent

with the FBI – which is why, on direct appeal, this Court

concluded that any failure to qualify Bevington as an expert

was harmless. See id. This testimony, and other unchallenged

portions of Bevington’s presentation, were appropriate parts of

the Government’s case against Appellants.

III.

Having concluded that Appellants’ counsel performed

below the constitutional standard when they failed to renew

their challenges to Bevington’s lay opinion testimony, we now

17

consider whether Appellants were prejudiced by this

deficiency. With Bevington’s remaining permissible

testimony, the Truck Bug evidence, and the significant

evidence not challenged here, we have no doubt that the jury

would have convicted Appellants even absent the problematic

testimony by Bevington.

We note first that the uncontroverted recordings include

many exchanges in which Glover and Price arranged to meet

with Suggs. In call after call – which the District Court

painstakingly inventoried in its consideration of Appellants’

habeas petitions – Appellants made plans to get together with

Suggs. The frequency of the meetings, and the single-minded

emphasis on Appellants’ need to receive something from

Suggs, make these recordings strong circumstantial evidence

that Appellants were engaged with Suggs in the distribution of

unlawful substances. That Price and Suggs aborted a planned

meeting when they suspected that they were being followed by

law enforcement vehicles cements such an inference.

The Truck Bug evidence also carries significant weight in

the case against Appellants. As described in the factual

background above, the Truck Bug recordings submitted against

both Glover and Price linked Appellants to specific exchanges.

The Truck Bug evidence linked Glover to a 16-ounce quantity

of PCP and Price to a gallon. For both Appellants, the Truck

Bug evidence also demonstrated the exchange of money owed

between Appellants and Lonnell Glover and Suggs. These

connections provided significant circumstantial evidence of

Appellants’ involvement in the PCP conspiracy.

Finally, the pervasive physical evidence in the homes of

the Glover associates linked the group to the PCP, as did the

controlled buys conducted by law enforcement in the course of

the investigation. For Glover in particular, the drugs and drug

18

paraphernalia recovered when his home was searched was

compelling evidence against him.

In contrast, the weight of Bevington’s inadmissible lay

opinion testimony was minimal. Bevington’s interpretations

were primarily used to buttress the prosecution’s argument that

the vague, guarded terms sometimes used by Appellants and

others in fact referenced PCP. But the many unchallenged

conversations from the Suggs wiretap linked Appellants to

their co-conspirators, and to Suggs in particular, and Truck Bug

recordings had separately established the connection between

Appellants and the drug trade, as did the controlled buys and

physical evidence, including PCP, recovered from Appellants’

constant associates.

Given the quantity of evidence against Appellants and the

minimal impact of the testimony challenged here, we see no

prejudice despite counsel’s deficiency in failing to challenge

the improper lay opinion testimony by Agent Bevington.

Absent prejudice, there is no Sixth Amendment violation.

Strickland, 466 U.S. at 691-92.

***

For the foregoing reasons, we affirm.