Argued, March 20, 2014
Appeal from the United States District Court for the District of Maryland, at Baltimore. (1:11-cr-00569-CCB-1). Catherine C. Blake, District Judge.
Todd Michael Brooks, WHITEFORD TAYLOR & PRESTON LLP, Baltimore, Maryland, for Appellant.
Ayn Brigoli Ducao, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Erek L. Barron, WHITEFORD TAYLOR & PRESTON LLP, Bethesda, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Before GREGORY and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge. Senior Judge Davis wrote the opinion, in which Judge Gregory and Judge Keenan joined.
DAVIS, Senior Circuit
Appellant Danilo Garcia, one of fourteen defendants named in a superseding indictment
returned by the grand jury in the District of Maryland, appeals his convictions on five counts of narcotics trafficking. After a severance, Garcia proceeded to trial with two codefendants.
The Government's presentation at trial consisted primarily of two types of evidence: (1) law enforcement testimony recounting observations (and describing a few drug seizures) resulting from close surveillance of the physical comings and goings of numerous coconspirators and targets, including drug couriers; and (2) audio recordings of wiretapped mobile telephone conversations concerning drug supplies, deliveries, and payments therefor. Over defendants' vigorous objections before and during trial, the district court permitted an agent of the Federal Bureau of Investigation to testify as an expert on coded drug-related conversations. The agent also testified as a fact witness regarding aspects of the lengthy investigation.
The jury convicted Garcia of drug conspiracy and of the four substantive counts in which he was named, but it was unable to reach a unanimous verdict as to his co-defendants and the court declared a mistrial on those charges.
On appeal, Garcia assigns error to the district court's admission of the decoding expert's testimony, and the court's denial of his motion for judgment of acquittal for lack of sufficient evidence as to one of the substantive counts on which he was convicted.
Upon our careful review of the record, we hold that the district court abused its discretion in its evidentiary rulings as viewed in their totality. Specifically, we hold that, on this record, safeguards adopted by the district court to avoid the substantial risk of prejudice inhering in the jury's receipt of the decoding expert's testimony were inadequate. Garcia timely and repeatedly objected regarding the foundational sufficiency and methodological reliability of the agent's expert testimony, and he specifically pointed to the risk of prejudice arising from the agent's dual capacity as both an expert and fact witness. We are persuaded that, under the circumstances of this case, neither the district court's cautionary instructions to the jury nor its sporadic sustaining of some of counsels' objections adequately mitigated the risk of substantial prejudice. Furthermore, we are unable to conclude that the missteps evident in this record were harmless. We reach this conclusion reluctantly, because the district court tried mightily to hew to the lines we have drawn in prior cases.
Accordingly, although we discern no reversible error in the court's denial of the motion for judgment of acquittal, we hold that the errors in the decoding expert's testimony so infected the entire trial that we must vacate the judgment and remand the case to the district court for further proceedings.
On August 23, 2012, the grand jury returned a ten-count superseding indictment against Garcia and thirteen others. Garcia was named in the following five counts: Count One, conspiracy to distribute more than one kilogram or more of heroin, in
violation of 21 U.S.C. § § 841(a)(1), 846, from April 2009 to November 2011; Count Four, possession with intent to distribute heroin on April 19, 2011 in violation of 21 U.S.C. § 841(a)(1); Count Five, possession with intent to distribute 100 grams or more of heroin on July 22, 2011 in violation of 21 U.S.C. § 841(a)(1); Count Six, possession with intent to distribute 100 grams or more of heroin on August 5, 2011 in violation of 21 U.S.C. § 841(a)(1); and Count Seven, possession with intent to distribute 100 grams or more of heroin on April 17, 2009 in violation of 21 U.S.C. § 841(a)(1).
At the times relevant to this case, Garcia lived in New York City. The basic theory of the prosecution was straightforward: (1) coconspirator Yoni Rodriguez, who pled guilty in the Eastern District of New York on narcotics charges and testified against Garcia pursuant to a plea agreement, was Garcia's source of uncut heroin starting sometime in 2005, selling to Garcia every few weeks or so, usually on consignment; (2) Garcia would distribute the heroin in Baltimore, after either transporting the drugs himself or via drug couriers from New York; (3) Roy Lee Clay and Walter Lee Powell were Baltimore-based middlemen who distributed quantities of heroin to other dealers in the Baltimore area.
In addition to the charge of knowing participation in the thirty-month drug trafficking conspiracy, Garcia was charged with four specific instances of possession with intent to distribute heroin, the circumstances surrounding which we summarize as follows:
On April 17, 2009, a police officer observed Garcia exiting a white shuttle bus in the parking lot of a Baltimore travel plaza, carrying a brown paper bag. After Garcia saw the police officer, he reentered the bus, left the bag behind, and disclaimed any knowledge of or interest in the bag. The officer found a manicure set inside the bag, and inside the manicure set he discovered approximately 200 grams of heroin.
On April 19, 2011, police observed Powell enter Kenya Salik Montgomery's car and exiting after about two minutes. When, about two hours later, the police searched Montgomery, they found multiple baggies of heroin.
On July 22, 2011, Garcia spoke by phone with Powell and instructed Powell to travel to Philadelphia. The FBI observed Powell when he arrived in Philadelphia and visited a certain neighborhood. After remaining in Philadelphia a mere fifteen minutes, Powell returned to Maryland (followed by law enforcement). A Maryland State Police trooper conducted a traffic stop upon Powell's entry into the state and the trooper recovered 143.7 grams of heroin from Powell.
On August 5, 2011, FBI agents observed Nancy Feliciano at a travel plaza in Baltimore, leaving a van and getting into a cab. As she was getting into the cab, the agents approached her and searched her bags (with her consent). They found approximately 500 grams of heroin and an index card which had Powell's address and phone number. Later, while she was being detained in the custody of the FBI, Feliciano made a monitored call to Garcia and accused him of providing her with heroin.
During the trial, many members of law enforcement, including FBI agents, U.S. Drug Enforcement Agency agents, and state and local law enforcement officers, testified regarding their surveillance and observations of the defendants together in and around Baltimore, as well as in New York and once in Philadelphia. Critically, much of the investigation entailed the maintenance of wiretaps on four mobile phones used by Garcia, two used by Clay, and two used by Powell. To a significant
extent, coded telephone conversations could be aligned with the physical activities of the coconspirators.
On August 30, 2012, the Government provided notice to the defendants of its intent to call FBI Special Agent Carrie Dayton as an expert. The Government provided Agent Dayton's resumé, and stated that she " served as a monitor on the wiretaps, and will testify as to the meaning of coded references in several of the calls used by the conspirators, when discussing drug trafficking over the phone." J.A. 38. The Government's disclosure showed that Agent Dayton had worked as a paralegal and then, for more than six years, as an attorney, before joining the FBI in May 2004. She thus had eight years of law enforcement experience by the time of trial. She initially worked in the FBI's Civil Rights and White Collar Crime divisions, and joined the Safe Streets Task Force in November 2007, working narcotics and violent crime investigations.
Agent Dayton had " observed and  recognize[d] patterns of behavior consistent with narcotics trafficking" as a result of her participation in over 20 investigations. J.A. 57. Agent Dayton was also involved in over five wiretap investigations, during which she " listened to thousands of phone conversations between individuals who participated in or were suspected of" drug trafficking conspiracies and other crimes. Id. Agent Dayton attested that she has " gained a working knowledge of drug language and terminology commonly used by drug dealers" and that she was " aware of the technique and [has] heard hundreds of conversations in which narcotics traffickers employ code words to disguise discussions" about drugs. Id. Agent Dayton had not previously testified as an expert on coded drug language.
Days before the commencement of trial, defendants moved to exclude the testimony of Agent Dayton on the basis that the Government failed to provide a sufficient expert disclosure in conformity with Federal Rule of Criminal Procedure 16(a)(1)(G). On October 2, 2012, after opening statements, the district court denied the motion. Referring to whether the Government had provided a sufficient outline of Agent Dayton's proposed testimony, the court stated that,
it appears to me that when a disclosure says she is going to testify to coded references in transcripts of calls related to narcotics, clearly, based on the openings, counsel have understood the government's theory to be that references to things like cars and perhaps girls are in fact references to drugs, that it does not take any great additional ...