PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4493
NIGEL HUMPHREY JOHN BAPTISTE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:06-cr-00171-RDB)
Argued: December 2, 2009
Decided: February 26, 2010
Before WILKINSON, GREGORY, and DUNCAN,
Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Wilkinson and Judge Gregory joined.
COUNSEL
ARGUED: Gary Proctor, LAW OFFICES OF GARY E.
PROCTOR, LLC, Baltimore, Maryland, for Appellant. John
Francis Purcell, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON
2 UNITED STATES v. BAPTISTE
BRIEF: Rod J. Rosenstein, United States Attorney, Balti-
more, Maryland, for Appellee.
OPINION
DUNCAN, Circuit Judge:
This is an appeal from a conviction and sentence on one
count of conspiracy to distribute and possess with intent to
distribute controlled substances in violation of 21 U.S.C.
§ 846, and four counts of possession with intent to distribute
cocaine and cocaine base in violation of 21 U.S.C.
§ 841(a)(1). Appellant Nigel Baptiste asserts that the district
court committed several errors during his jury trial. Con-
strained by our review for plain error, we affirm.1
1
Although represented by counsel on appeal, Baptiste filed a pro se sup-
plemental brief alleging ineffective assistance of counsel at trial. Claims
of ineffective assistance of counsel may be raised on direct appeal only
where the record conclusively establishes ineffective assistance. See
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Otherwise, the
proper avenue for such claims is a 28 U.S.C. § 2255 motion filed with the
district court. See Massaro v. United States, 538 U.S. 500, 504-06 (2003)
(recognizing that "in most cases a motion brought under § 2255 is prefera-
ble to direct appeal for deciding claims of ineffective assistance" because
the trial record is "often incomplete or inadequate for [addressing such
claims on direct review,]" thereby risking the failure of "[e]ven meritori-
ous claims"); see also United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999).
Baptiste alleges, among other things, that trial counsel failed to effec-
tively represent him due to a conflict of interest resulting from counsel’s
prior representation in an unrelated matter of one of Baptiste’s co-
defendants, who pleaded guilty before trial. Our review of the record
shows that it does not conclusively establish any of the alleged grounds
for Baptiste’s ineffective assistance claim. Therefore, because the claim is
not properly before us, we do not address it as part of this appeal.
UNITED STATES v. BAPTISTE 3
I.
In the spring of 2005, a drug task force organized by the
Sheriff’s Department of Cecil County, Maryland, began a
large-scale investigation of a cocaine distribution ring cen-
tered in the small community of Winding Brook. The investi-
gating officers conducted twelve state-court authorized
wiretaps, targeting first the lower-level dealers and then pro-
ceeding up the distribution channel to several higher-level
traffickers. Through the wiretaps and related surveillance, the
officers identified an individual named Larry Brown as one of
the ring’s mid-level cocaine suppliers. The investigation then
focused on ascertaining Brown’s source of supply. In Novem-
ber 2005, the officers discovered that Brown’s supplier was
Baptiste. After monitoring Baptiste’s actions and telephone
calls, the officers determined that Brown and Baptiste were
regularly conducting kilogram-quantity cocaine transactions
together.
On January 2, 2006, following a meeting during which the
officers believed that Baptiste delivered one kilogram of
cocaine to Brown, the officers arrested Baptiste. At the time
of his arrest, Baptiste possessed six cellular telephones, two
of which he had been using to communicate with Brown.
Baptiste also possessed a driver’s license under a fictitious
name.
On May 11, 2006, Baptiste was indicted by a federal grand
jury on one count of conspiracy to distribute and possess with
intent to distribute controlled substances in violation of 21
U.S.C. § 846, and four counts of possession with intent to dis-
tribute cocaine and cocaine base in violation of 21 U.S.C.
§ 841(a)(1). Several other defendants were also indicted on
charges stemming from the Winding Brook investigation.
Only Baptiste and one codefendant, Lamar Ricks, elected to
proceed to trial; the rest pleaded guilty.
After jury selection but before the start of the trial, the
judge learned that some of the jurors had "expressed some
4 UNITED STATES v. BAPTISTE
feeling of intimidation with respect to people in the hallway
outside of [the] courtroom doing what is called staring them
down." J.A. 28. Once the court had reconvened after lunch,
the judge issued the following warning to the courtroom audi-
ence and the parties:
[The alleged staring] will absolutely not be tolerated.
No attendant at this trial will be permitted to stand
in the hallway here on the fourth floor. You will
either sit in the courtroom or you will go down to the
first floor and sit in the lobby area, in the couch area.
Is that understood by everybody in attendance here?
And if anybody disobeys that order by me, they will
be taken into custody by the U.S. Marshal and find
themselves on the sixth floor lockup. So that’s the
way it will be. You’re in this courtroom or you’re
downstairs in the first floor lobby. And the marshals
will make sure that there’s absolutely no effort by
anybody to try to intimidate a juror in this case.
J.A. 28–29. Significantly, the court asked both parties if they
had any questions. Neither did. The court then addressed
defense counsel:
And out of respect to defense counsel, I’m [not]
holding that against the defendants in any way,
shape or form, but this is not the wild west. You’re
in the United States District Court. You’re in federal
court and that kind of conduct will not be tolerated
by anybody who’s a witness at this case.
J.A. 29. The following day, Ricks entered a guilty plea, and
the courtroom became noticeably less crowded for the
remainder of the five-day trial.
The evidence presented at trial included testimony from
one of the police officers who arrested Baptiste. According to
the officer, at the time of his arrest Baptiste told him that "he
UNITED STATES v. BAPTISTE 5
was glad that he was finally arrested and that he could finally
stop looking over his shoulders." J.A. 423. Baptiste also
showed the officers a secret compartment in his vehicle which
he stated he had used in the past to smuggle cocaine. Another
officer testified that, after he informed Baptiste of his
Miranda rights, Baptiste volunteered that "he was supposed to
be involved in a 150 to 200-kilo deal the following day." J.A.
435. The evidence also included testimony from some of
Batiste’s coconspirators, one of whom testified that Baptiste
had been a source of cocaine for Brown for many years.
The bulk of the remaining evidence consisted of testimony
regarding the investigation of the conspiracy, including
descriptions of the surveillance conducted and analyses of
numerous wiretapped telephone calls among the coconspira-
tors. To elicit the purpose of the wiretaps and the context of
the calls themselves, the government proffered Detective
Kenneth Russell, who had been the lead investigator in the
case, as an expert witness.
When Russell first took the stand, the government sought
to lay the foundation for his expertise regarding "the manner
and means of drug trafficking." J.A. 63. In response to the
government’s foundation-laying questions, Russell indicated
that he had worked as a narcotics officer for approximately
nine years, that his job required him to work in close proxim-
ity with drug users on a daily basis, and that he had previously
testified as an expert regarding the manner and means of drug
trafficking. Russell also testified that, through his experience,
he was familiar with the street jargon associated with cocaine
trafficking.
After the government requested that Russell be qualified as
an expert, the court asked defense counsel if he wanted to voir
dire Russell regarding his qualifications to testify as an expert.
Counsel for the defense made no such indication. The court
then proceeded to qualify Russell as an expert, but reminded
defense counsel of his continuing ability to challenge Rus-
6 UNITED STATES v. BAPTISTE
sell’s testimony on cross-examination. The court also gave the
following cautionary instruction to the jury regarding Rus-
sell’s testimony:
Ladies and gentlemen, under the case law of the
United States Court of Appeals for the Fourth Circuit
which is the court directly above this court, it has
been established that there may be expert testimony
with respect to the method and means of drug pack-
aging and drug distribution as well as the use of
slang terms in terms of drug explanations. Having
said that, that just means that this witness has been
qualified as an expert whereas most times witnesses
are not permitted to give their opinions. One excep-
tion to that is in the area of expert opinion where a
witness is permitted to give his expert opinion. But
it’s for you to accept, reject or whatever in terms of
whether you accept that testimony or not and cer-
tainly, [defense counsel] can challenge certain opin-
ions in his cross-examination. But Mr. Russell has
been qualified, Detective Russell has been qualified
as an expert and is accepted as such by the Court and
so accordingly, he is permitted then to give his opin-
ion as an expert.
J.A. 63-64. This was the district court’s only jury instruction
as to Russell’s role in the proceedings.
Russell’s testimony throughout the trial followed a regular
pattern. The government would ask Russell if he "ha[d] an
opinion" about whether a particular phone call "relate[d] to
drug trafficking activity" and Russell would respond in the
affirmative. See, e.g., J.A. 101. He would then describe the
call’s content and import. At that point, the government
would play for the jury the recording of the call in question.
This pattern was repeated for numerous phone calls. Russell’s
testimony was interrupted by occasional testimony from other
officers who participated in surveillance stemming from a
UNITED STATES v. BAPTISTE 7
particular phone call. In these instances, Russell would leave
the witness stand and then return once the other officer fin-
ished testifying. A slightly longer interruption occurred near
the end of the trial when two of Baptiste’s coconspirators
offered testimony. Otherwise, the pattern of Russell’s testi-
mony remained largely the same throughout the trial.
Although the pattern of Russell’s testimony remained the
same, its content with respect to particular calls varied
slightly. Sometimes Russell merely described the call’s con-
tent, sometimes he opined about whether it concerned drug
distribution, and sometimes he translated code words. For
instance, the government at one point asked Russell to inter-
pret the code "2-3-5," which he interpreted to mean
"$23,500." J.A. 377–78. On some occasions, Russell would
also testify as to the surveillance activities conducted in con-
nection with the intercepted calls. Throughout Russell’s testi-
mony, the court’s involvement was limited to warning Russell
sua sponte at one point against improperly opining about a
coconspirator’s intent, and to sustaining several of defense
counsel’s objections unrelated to Russell’s dual-role as an
expert and fact witness. Defense counsel never requested
additional jury instructions from the court regarding Russell’s
dual-role testimony.
In its closing argument, the government sought to articulate
for the jury whether it would be foreseeable from Baptiste’s
perspective that the cocaine he sold to his underlings would
be ultimately turned into crack. To illustrate the concept of
foreseeability, the government provided the following anal-
ogy:
[L]et me give you an example of something that
might not be foreseeable. . . .
Now say we were charging here a case where Mr.
Baptiste was [sic], I’m charging him with terrorism.
Why? Because—we’re not going to charge him with
8 UNITED STATES v. BAPTISTE
terrorism. But because, for instance, maybe, maybe
because the terrorism is a conspiracy to blow up the
courthouse or something. He’s a cocaine dealer and
he sold cocaine to [a coconspirator] who’s a terrorist
and he used that money before he became a terrorist
and he used that money to fund a terrorist organiza-
tion and go blow up the courthouse. And we saw that
the evidence showed that the money came [from]
that, all came from cocaine that he bought from Mr.
Baptiste. So we’re charging Mr. Baptiste, not for
being a drug dealer, but being part of a conspiracy
to blow up a courthouse. Now that might not be fore-
seeable. And if I were arguing to you at that point,
well, it should be foreseeable that a cocaine dealer
should know that people he sells crack to may use
the profits to fund a terrorist organization, you would
be going I’m not so sure, I’m not so sure. That’s all
you have? That’s not what we’re saying. All we’re
saying is that you can find from the evidence that it’s
foreseeable that a person who sells powder [cocaine]
should expect that powder is going to be turned into
crack. That’s a decision you have to make.
J.A. 447–48. Neither defense counsel nor the court raised an
issue regarding the government’s analogy, and the govern-
ment proceeded with its closing argument.
The jury convicted Baptiste on all counts. Baptiste received
concurrent sentences of 300 months’ imprisonment on each of
the five counts. This appeal followed.
II.
Baptiste raises four distinct arguments on appeal. First, he
argues that the district court erred when it failed to voir dire
jurors following the alleged incident of jury intimidation. Sec-
ond, he asserts that the court erred in allowing Detective Rus-
sell to testify as an expert witness because Russell did not
UNITED STATES v. BAPTISTE 9
have a reliable methodology supporting his expert testimony.
Third, he argues that the court erred in allowing Russell to
testify as both an expert and a fact witness without establish-
ing any safeguards to prevent jury confusion about Russell’s
dual role. Finally, Baptiste asserts that the court erred in per-
mitting the prosecutor to include in his closing statement an
improper metaphor that involved Baptiste unwittingly funding
a terrorist act. We will consider each argument in turn.
Because Baptiste did not raise any of these issues at trial,
we review for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731–32 (1993). On plain-error
review, "‘[i]t is the defendant rather than the Government
who bears the burden of persuasion.’" United States v. Has-
tings, 134 F.3d 235, 240 (4th Cir. 1998) (quoting Olano, 507
U.S. at 734) (alterations in original). Accordingly, to succeed
on any one of his arguments, Baptiste must persuade us that
there was "an ‘error’ that [was] ‘plain’ and that ‘affect[ed]
substantial rights.’" Olano, 507 U.S. at 732 (quoting Fed. R.
Crim. P. 52(b)). With regard to the third element of that stan-
dard, Baptiste must show that the alleged error actually "af-
fected the outcome of the district court proceedings." Id. at
734. However, "[e]ven if the error is plain and affects sub-
stantial rights, . . . we [do] not exercise our discretion to cor-
rect the error ‘unless a miscarriage of justice would result or
the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings independent of the defen-
dant’s innocence.’" United States v. Johnson, 219 F.3d 349,
353 (4th Cir. 2000) (quoting United States v. Cedelle, 89 F.3d
181, 184 (4th Cir. 1996)) (last alteration in original).
Using this framework, we turn to consideration of Bapt-
iste’s contentions.
A.
Baptiste first argues that the court erred in failing to ade-
quately address the issue of juror intimidation. He asserts that,
10 UNITED STATES v. BAPTISTE
upon learning that jurors felt intimidated by stare-downs from
members of the crowd, the court was obligated under Remmer
v. United States, 347 U.S. 227 (1954), to conduct a voir dire
examination of the jurors. Remmer instructs: "In a criminal
case, any private communication, contact, or tampering
directly or indirectly, with a juror during a trial about the mat-
ter pending before the jury is, for obvious reasons, deemed
presumptively prejudicial . . . ." Id. at 229. We ordinarily
review a district court’s decision not to hold voir dire follow-
ing a jury intimidation allegation under an abuse of discretion
standard. United States v. Basham, 561 F.3d 302, 320 (4th
Cir. 2009). However, because Baptiste did not raise this issue
at trial, we review only for plain error.
As we have explained, "while a presumption of prejudice
attaches to an impermissible communication, the presumption
is not one to be casually invoked." Stockton v. Virginia, 852
F.2d 740, 745 (4th Cir. 1988). For that reason, we have held
that to trigger a Remmer presumption, the defendant bears the
initial burden of "‘establish[ing] both that an unauthorized
contact was made and that it was of such a character as to rea-
sonably draw into question the integrity of the verdict.’" Full-
wood v. Lee, 290 F.3d 663, 678 (4th Cir. 2002) (quoting
Stockton, 852 F.2d at 743.)
We first note that Baptiste made no effort in this case to
meet this threshold burden.2 But, even assuming without
deciding that the alleged stares were sufficient to constitute
2
We find unavailing Baptiste’s position that, although he failed to meet
his burden of establishing the Remmer presumption, the court should
nonetheless have sua sponte held voir dire. Baptiste cites no case law sug-
gesting that the district court has such a duty. As we have made clear, the
existence of such a presumption did not absolve Baptiste of his duty to
raise the matter. Further, even if such a sua sponte requirement could theo-
retically be triggered, the record before us does not contain facts that
unequivocally show that the contacts were of the sort that would automati-
cally require voir dire.
UNITED STATES v. BAPTISTE 11
unauthorized contact,3 there is no evidence on the record that
the alleged contact with the jury was such that it was likely
to influence the verdict. This alone would be sufficient to
reject Baptiste’s contention on this point. However, we note
that there is no evidence on the record that trial counsel ever
alleged that the communication would affect the verdict or
that voir dire was required. Therefore, because Baptiste did
not even attempt to trigger the Remmer prejudice presump-
tion, we cannot say that the district court erred, much less
plainly erred, in not responding to the situation by holding a
special voir dire.4
Furthermore, Baptiste has failed to show that the alleged
error affected his substantial rights as required by the third
3
We note that our sister circuits have disagreed on the issue of whether
stares alone can be considered "unauthorized contacts" for purposes of
Remmer. Compare United States v. Brown, 923 F.2d 109, 112 (8th Cir.
1991) (holding that "physical closeness, stares, and rebuffed efforts at con-
versation . . . are neither unique nor uncommon to public trials and do not
of themselves trigger the Remmer presumption), with United States v.
Rutherford, 371 F.3d 634, 643 (9th Cir. 2004) (finding stares by govern-
ment witnesses constitute unauthorized contacts). However, because we
find that Baptiste failed to show that any contact that occurred was such
that it would affect jury impartiality, we need not resolve this question
here.
4
Baptiste relies on Rutherford for the proposition that "stares" alone can
give rise to the Remmer presumption. 371 F.3d at 643. The contrast
between Rutherford and this case, however, provides a great example of
why Baptiste’s allegations are insufficient. In Rutherford, jurors com-
plained that government agents glared at them throughout the trial. The
agents in question were sitting behind the government attorneys during the
trial, consulted often with those attorneys in view of the jury, and served
as key witnesses for the government. The Rutherford court found particu-
larly significant the fact that the persons who had allegedly intimidated the
jurors were "government agents intimately associated with the prosecu-
tion." Id. at 643. By contrast, Baptiste has provided no evidence showing
that the people who allegedly intimidated the jury in this case were linked
in any way to him or to the government. It would therefore be mere specu-
lation for us to determine that the conduct prejudiced the jury against Bap-
tiste.
12 UNITED STATES v. BAPTISTE
Olano prong. To do so, Baptiste would have to show that the
court’s failure to conduct a special voir dire actually affected
the outcome of the trial. Olano, 507 U.S. at 734. Baptiste’s
assumption, however, that the stare-downs were somehow
attributed to him, and therefore turned the jury against him, is
based on pure speculation. There is no evidence in the record
as to who was responsible for the conduct in question. There
is also no indication that the people responsible were linked
to Baptiste. In fact, Baptiste alleges that those involved were
Ricks’s family members, who stopped attending the trial as
soon as Ricks pleaded guilty the day after the court issued its
warning. Baptiste does not explain why the jury would impute
the actions of Ricks’s family members to Baptiste. Therefore,
nothing on the record supports a conclusion that the intimida-
tion was somehow attributed by the jury to Baptiste to his det-
riment. Without a showing that the alleged intimidation
prejudiced Baptiste, we cannot find that the court’s failure to
conduct voir dire following the allegations of intimidation
affected his substantial rights. Accordingly, Baptiste has
failed to establish prejudice as required by Olano.
B.
Baptiste next argues that the court erred in allowing Russell
to testify as an expert witness. The admissibility of expert tes-
timony is governed by Federal Rule of Evidence 702. We
ordinarily "review for abuse of discretion the district court’s
decision to admit expert testimony under Federal Rule of Evi-
dence 702." United States v. Wilson, 484 F.3d 267, 273 (4th
Cir. 2007). However, because Baptiste failed to object at trial
to the court’s certification of Russell as an expert, our review
is for plain error. We therefore must determine whether the
district court plainly erred in finding that Russell’s testimony
complied with the requirements of Federal Rule of Evidence
702.
Federal Rule of Evidence 702 requires, among other things,
"that [expert] testimony . . . be the product of reliable princi-
UNITED STATES v. BAPTISTE 13
ples and methods." Fed. R. Evid. 702 advisory committee’s
note 2000. As we have noted, the district court has "‘broad
latitude’" in determining whether the expert’s methodology is
reliable. Wilson, 484 F.3d at 274 (quoting Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 142 (1999)). Baptiste
argues that the district court erred in finding Russell’s meth-
odology sufficiently reliable.5 He asserts that Russell’s "pur-
ported methodology plainly does not pass muster under
Federal Rule of Evidence 702" because it consisted of inter-
preting coded conversations based on three "shaky bases . . .
[:](1) the defendants’ identities; (2) their behavior; and (3) the
repetition of certain words." Appellant’s Br. at 25.6
What Baptiste refers to as "shaky" methodology is very
similar to what we found to be sufficient methodology in Wil-
son. 484 F.3d at 275. There, a narcotics officer was allowed
to testify as an expert interpreting drug-related code language.
The officer explained his methodology as follows:
It all depends on the situation. I mean, there’s, obvi-
ously, there’s a lot of words to mean one thing. So
like I say, you take it into the context of what you’re
talking about. That’s how you determine. . . . It all
depends on the context of the call. You know, drug
dealers use coded language. And the reason that they
5
Baptiste does not challenge whether Russell was sufficiently qualified
to testify as an expert witness. Indeed, we have previously held that expe-
rienced narcotics officers are qualified to testify as expert witnesses
regarding drug trafficking, code interpretation, and similar matters. See,
e.g., Wilson, 484 F.3d at 275-76.
6
Although Baptiste argues that Russell offered "no particular methodol-
ogy" for his determination, he asserts that Russell’s testimony "suggests"
that he based his testimony on the three grounds specified above. Indeed,
although Russell did not specifically mention the word "methodology" in
his testimony, he did state that, based on his experience, he was familiar
with the street-level jargon associated with drug trafficking and that he
decoded conversations by examining them in context of other calls placed
between the suspects.
14 UNITED STATES v. BAPTISTE
do that is because they don’t want police involve-
ment or police to know what they’re talking about.
. . . I take the person who’s talking, the conversation.
I take what has this person, what’s the routine pat-
tern of this person before and the pattern after. And
that’s how I make my determination. . . . [W]hen you
hear [a] word time and time again . . . then there’s
a pattern that develops. And when that pattern devel-
ops, that ultimately shows you what they’re talking
about.
Id. at 275 (alterations in original). The Wilson court found the
officer’s methods to be sufficient to meet the requirements of
Rule 702. Id. at 276. The description in Wilson of acceptable
methodology is comparable to the methodology employed by
Russell as described by Baptiste, that is, using context and
repetition to determine the meaning of certain words. This
type of methodology is exactly what is contemplated by the
commentary to Rule 702 for a narcotics officer interpreting
coded language. As the advisory committee notes on Rule 702
explain:
[T]he principle used by the agent is that participants
in such transactions regularly use code words to con-
ceal the nature of their activities. The method used
by the agent is the application of extensive experi-
ence to analyze the meaning of the conversations.
Fed. R. Evid. 702 advisory committee’s note 2000 (quoted in
Wilson, 484 F.3d at 274-75). Because Russell’s approach to
decoding language is so similar to that which we found
acceptable in Wilson, and to that which is contemplated by the
commentary to Rule 702, we cannot say that the district court
plainly erred in finding that Russell’s methodology was suffi-
ciently reliable to allow him to testify as an expert.7
7
Further supporting our conclusion regarding the absence of prejudice,
we also note that many of Russell’s interpretations of coded conversations
were corroborated at trial by the testimony of actual participants to those
conversations.
UNITED STATES v. BAPTISTE 15
C.
Baptiste next argues that the court erred by failing to
employ safeguards to prevent jury confusion regarding Rus-
sell’s dual role as an expert and fact witness. As a result, Bap-
tiste argues, the jury gave undue weight to Russell’s factual
testimony and was confused as to when his testimony was
based on his expert opinion and when it was based on his fac-
tual recollections of the investigation.8 While we usually
review a court’s decisions regarding an expert’s testimony for
abuse of discretion, Wilson, 484 F.3d at 273, here we review
only for plain error because Baptiste failed to raise this issue
at trial.
We have previously recognized that while "such dual wit-
nesses could confuse the jury," dual-role testimony is accept-
able where "the district court took adequate steps . . . to make
certain that [the witness’s] dual role did not prejudice or con-
fuse the jury." Id. at 278 n.5. In Wilson, we found safeguards
sufficient where the court had the witness "testify first as a
fact witness" and also "issu[ed] a cautionary instruction to the
jury." Id. Unlike in Wilson, the court here did not have Rus-
sell take two separate trips to the stand, nor did it issue a cau-
tionary instruction specific to Russell’s dual role. We have yet
to consider the precise circumstance presented here, namely,
in which lay and expert witness testimony is presented simul-
taneously.
Those circuits that have considered simultaneous dual-role
testimony have generally found it to be properly admitted so
8
Baptiste also argues in passing that allowing Russell’s dual-role testi-
mony "resulted in his testifying to matters that were not appropriate as
expert or lay testimony." Appellant’s Br. at 30 (emphasis in original).
Whether or not this occurred, we fail to see how it could be a result of his
dual role as a lay and expert witness. Both lay and expert witnesses occa-
sionally venture into impermissible areas of testimony. We are uncon-
vinced that Russell’s dual role made him somehow especially likely to
give such testimony.
16 UNITED STATES v. BAPTISTE
long as the court implements adequate safeguards to prevent
juror confusion or jurors giving undue weight to the lay testi-
mony. The Seventh Circuit case of United States v. Farmer,
543 F.3d 363 (7th Cir. 2008) and the Sixth Circuit case of
United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006)
are illustrative of the lines that courts have drawn regarding
adequate safeguards.
The defendant in Farmer was charged with drug offenses.
At trial, a federal agent testified both to the alleged conduct
and to the meaning of code words in drug distribution. He
gave both lay and expert testimony during the same trip to the
witness stand, following a pattern much like that followed at
Baptiste’s trial.
The Farmer court noted four safeguards that the district
court implemented with regard to the agent’s dual-role testi-
mony. First, the district court gave a cautionary instruction to
the jury, reminding the jury that it could "give the testimony
whatever weight you think it deserves." Farmer, 543 F.3d at
371 (quotation marks and alterations omitted). Second,
defense counsel cross-examined the agent about his expert
opinion, "which further clarified the testimonial capacities for
the jury." Id. Third, the district court required the government
to establish a proper foundation for the witness’s expertise. Id.
at 370-71. Finally, "[t]he government . . . prefaced [the
agent’s] expert testimony by asking him to interpret the coded
language’s meaning ‘based on [his] expertise.’" Id. at 371
(last alteration in original). Without noting which safeguard
was most important, the Seventh Circuit concluded that the
district court had "adequately alleviated" any potential con-
cerns regarding juror confusion. Id.
By contrast, the Sixth Circuit found safeguards to be inade-
quate in Lopez-Medina. The only safeguard provided at trial
in Lopez-Medina was a cautionary instruction to the jury indi-
cating that the government agent’s testimony was not entitled
to any greater weight because of the agent’s dual role and that
UNITED STATES v. BAPTISTE 17
defense counsel could attack the agent’s credibility. 461 F.3d
at 744. On review, the Sixth Circuit also noted that the agent’s
testimony "lacked any clear demarcation between expert and
fact witness roles." Id.
The safeguards implemented at Baptiste’s trial fall some-
where between Farmer and Lopez-Medina. On one hand, the
district court ensured that the government laid the foundation
for Russell’s expert testimony. The court also instructed the
jury regarding Russell’s testimony, saying that "it’s for you to
accept, reject or whatever in terms of whether you accept that
testimony or not," and noted that defense counsel could chal-
lenge Russell’s opinions. J.A. 64. However, the government’s
questioning failed to demarcate between lay and expert testi-
mony, a consideration that both Farmer and Lopez-Medina
weighed heavily. See Farmer, 543 F.3d at 371; Lopez-
Medina, 461 F.3d at 744. Furthermore, defense counsel’s
cross-examination of Russell did little to contribute to the dis-
tinction between lay and expert testimony. Thus, we believe
that the district court could have done more to ensure that
Russell’s lay and expert testimony were demarcated more
clearly in order to prevent juror confusion and to prevent
jurors from giving undue weight to Russell’s lay testimony.
To call this error "plain" under Olano, however, requires a
finding that the error is "obvious" or "clear under current
law." 507 U.S. at 734. Given that our circuit has not spoken
directly on this issue and that the facts in the present case
place it in a gray area of the law as applied by other circuits,
we cannot say that the error is obvious or clear at this time.9
9
Although we find that the error was not plain under current law, we
note that district courts should take steps to ensure that there is a clear
demarcation in the jury’s mind between a witness’s lay and expert roles.
This may be accomplished, for example, by cautionary warnings or
instructions, by requiring the witness to take separate trips to the stand in
each capacity, or by ensuring that counsel makes clear when he is eliciting
lay versus expert testimony. While the means of ensuring the demarcation
between the lay and expert roles of the witness lie within the discretion of
the district court, jurors should be made to understand that they may not
give the witness’s lay testimony additional weight simply because of his
dual-role as an expert.
18 UNITED STATES v. BAPTISTE
Furthermore, Baptiste has failed to show that the alleged
jury confusion affected his substantial rights as required by
the third Olano prong. Baptiste’s brief cites only two exam-
ples of situations where the government failed to "delineate
when it was eliciting fact testimony and when it was eliciting
expert opinions." Appellant’s Br. at 29. We find both exam-
ples unavailing.
The first example is a situation where, in the middle of
Russell’s expert testimony regarding a call, the government
attorney asked him, "By the way, what was the weather like
that night?," to which Russell responded "It was freezing
rain." J.A. 378. We fail to see, and Baptiste does not explain,
how this statement about the weather would confuse the jury
in such a way as to affect Baptiste’s substantial rights.
The second example is one in which Russell agreed with
counsel that a call that had just been played to the jury was
a "sort of [‘]where are you[’] call," J.A. 268, and then pro-
ceeded to testify about the surveillance related to that call. In
that call, Larry Brown, one of Baptiste’s coconspirators,
asked Baptiste to pick him up, Baptiste asked Brown to con-
firm where he was, and Brown responded that he was at the
Shop Rite store. Because of the call’s straightforward mean-
ing, Russell’s agreement that it was indeed a "where are you
call" is hardly a translation of the call for which his expertise
would be required. In fact, it seems to be simply factual back-
ground preceding his description about the surveillance sur-
rounding the call, which confirmed that Baptiste picked
Brown up at a Shop Rite store. Therefore, this is not a clear
example of Russell "seamlessly transitioning from a transla-
tion of calls to an account of specific surveillance in the case",
Appellant’s Br. at 30, in a way that would confuse the jury
and prejudice Baptiste.
Furthermore, Baptiste does not assert that Russell’s factual
testimony in either of these examples was incorrect or inaccu-
rate. Therefore, even if the jury had assigned greater credibil-
UNITED STATES v. BAPTISTE 19
ity to Russell’s factual testimony due to his dual role, it would
not have been misled as to the facts.10
Accordingly, because Baptiste has failed to show that the
alleged lack of clear distinction between Russell’s role as a
fact witness and his role as an expert witness actually affected
the outcome of the trial, he has not shown the prejudice neces-
sary to support a finding of plain error.
D.
Baptiste’s final allegation focuses on the portion of the
government’s closing argument in which counsel used a meta-
phor involving Baptiste’s hypothetical role in unknowingly
helping to fund a terrorist act. Baptiste argues that the remarks
confused the jury into thinking that Baptiste was a dangerous
man linked to terrorism and therefore deprived Baptiste of his
"right to a fair, unbiased jury." Appellant’s Br. at 20. Baptiste
therefore asserts that the court erred in allowing such remarks.
Generally, "[t]he district court is afforded broad discretion in
controlling closing arguments and is only to be reversed when
there is a clear abuse of its discretion." United States v.
Rhynes, 196 F.3d 207, 236 (4th Cir. 1999), vacated in part on
other grounds, 218 F.3d 310 (4th Cir. 2000) (en banc). How-
ever, because Baptiste did not object to the closing argument
at trial, we review for plain error.
We have found that, "[w]ith respect to claims of prosecu-
torial misconduct, an appellant must show that the remarks
were improper and that they ‘prejudicially affected the defen-
10
We also note that Russell’s factual testimony in the second example
related only to surveillance of Batiste and Brown conducted by Sergeant
Gerald Widdoes and Sergeant Timothy McDonald. Both Widdoes and
McDonald were witnesses in the trial, and Widdoes testified as to the sur-
veillance on that day. Therefore, had there been any inaccuracies in Rus-
sell’s testimony, Batiste’s counsel could have easily resolved that
confusion by cross-examining Widdoes and McDonald about the surveil-
lance. This would mitigate any potential prejudice.
20 UNITED STATES v. BAPTISTE
dant’s substantial rights so as to deprive the defendant of a
fair trial.’" United States v. Adam, 70 F.3d 776, 780 (4th Cir.
1995) (quoting United States v. Mitchell, 1 F.3d 235, 240 (4th
Cir. 1993)). In determining whether improper remarks require
reversal we consider:
(1) the degree to which the prosecutor’s remarks
have a tendency to mislead the jury and to prejudice
the accused; (2) whether the remarks were isolated
or extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; (4) whether the comments were deliber-
ately placed before the jury to divert attention to
extraneous matters[;] . . . (5) whether the prosecu-
tor’s remarks were invited by improper conduct of
defense counsel[;] . . . and (6) whether curative
instructions were given to the jury.
United States v. Wilson, 135 F.3d 291, 299 (4th Cir. 1998)
(internal citations omitted). The ultimate question "is whether
the prosecutors’ comments ‘so infected the trial with unfair-
ness as to make the resulting conviction a denial of due pro-
cess.’" Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)).
As a threshold matter, we are unconvinced that the prosecu-
tor’s statements were improper. The government’s apparent
purpose in posing the hypothetical was to provide the jurors
with an example of unforeseeable criminal activity so as to
give them a baseline for determining whether the actual crimi-
nal activity being charged—distribution of crack by Baptiste’s
underlings—was, in fact, foreseeable to Baptiste. The remarks
made clear that the government was not actually alleging that
Baptiste was funding terrorism; in fact, it was asserting the
contrary. At the outset of the metaphor the government stated:
"[L]et me give you an example of something that might not
be foreseeable. . . . Now say we were charging here a case
UNITED STATES v. BAPTISTE 21
where Mr. Baptiste was [sic], I’m charging him with terror-
ism. Why? Because—we’re not going to charge him with ter-
rorism." J.A. 447. The government then proceeded to pose a
hypothetical situation in which Baptiste sold cocaine to Larry
Brown and Brown then used the cocaine proceeds to fund a
terrorist organization, unbeknownst to Baptiste. The govern-
ment gave that as an example of something that Baptiste
could not have foreseen. It then contrasted it with something
that it alleged Baptiste could have foreseen -– that someone
would use powder cocaine to make crack.
Nothing in the government’s remarks hints at all at the fact
that Baptiste was involved in terrorism. The government did
not allege, as Baptiste claims, that Baptiste was "involved in
a terrorist plot to blow up a courthouse." Appellant’s Br. at 18
(emphasis in original). In fact, even as part of the metaphor
the government held Baptiste harmless for the unforeseeable
terrorist acts of Larry Brown. Therefore the metaphor was
actually an example in which Baptiste could not be held
responsible for someone else’s dangerous acts in which he
played no role. Even though we agree that the specter of ter-
rorism should not be invoked lightly, we do not see how the
statement could be interpreted as attributing acts of terrorism
to Baptiste. We therefore cannot agree with Baptiste that the
metaphor was "undoubtedly improper." Id.
Furthermore, even if the prosecutor’s remarks in this case
had been improper, we find that under the relevant Wilson
factors discussed above, Baptiste has failed to show that the
comments prejudicially affected his substantial rights so as to
deprive him of a fair trial. First, as we explained above, we
do not think that the metaphor was such that it would mislead
the jury into thinking that Baptiste was somehow dangerous
or involved in terrorism. Second, the comment constituted
only a very minor part of the government’s otherwise unob-
jectionable closing argument—fourteen lines out of a thirty-
six page transcript. Third, the record contains ample evidence
against Baptiste absent the remarks. This evidence includes a
22 UNITED STATES v. BAPTISTE
multitude of coded, drug-related telephone calls between Bap-
tiste and his coconspirators, surveillance corroborating the
meanings of those phone calls, Baptiste’s statements to offi-
cers regarding his involvement in cocaine trafficking, and
information from a cooperating coconspirator confirming that
Baptiste was Larry Brown’s cocaine source for many years.
Fourth, there is no indication that the government’s use of the
metaphor was in any way intended to divert the attention of
the jury or prejudice Baptiste. Instead, it is clear that the meta-
phor was intended to illustrate the concept of foreseeability,
which was part of the government’s case. Finally, although
the comments were not invited by the defense, and the court
did not give a curative instruction, we find these factors of
minimal relevance in light of the other considerations dis-
cussed here. Weighing all of the relevant factors, we find that
the remarks did not affect Baptiste’s substantial rights.
Accordingly, because we find that the remarks were not
plainly inappropriate and did not, in any event, affect Bapt-
iste’s substantial rights, we hold that the district court did not
plainly err in allowing the prosecutor’s closing argument.
III.
For the reasons stated above, we reject Baptiste’s allega-
tions of trial mismanagement on the part of the district court,
and his conviction is therefore
AFFIRMED.