United States v. McSwain

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 24 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-6345

EMMETT FRANKLIN McSWAIN,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CR-86-0001-A)

Howard A. Pincus, Assistant Federal Public Defender (Michael Katz, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant-
Appellant.

James F. Robinson, Assistant United States Attorney (Patrick M. Ryan, United
States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-
Appellee.

Before BRORBY , EBEL , and HENRY , Circuit Judges.

HENRY , Circuit Judge.

Mr. Emmett Franklin McSwain was convicted after a jury trial of one count
of conspiring to manufacture and distribute piperidine and phencyclidine (PCP) (a

violation of 21 U.S.C. § 846), one count of engaging in a continuing criminal

enterprise (CCE) (a violation of 21 U.S.C. § 848), four counts of engaging in

interstate travel to facilitate narcotics distribution (in violation of 18 U.S.C. §

1952(a)(3), the “Travel Act”), one count of possession of PCP and piperidine with

the intent to distribute and aiding and abetting that offense (in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2), and two counts of failing to file federal

income tax returns (in violation of 26 U.S.C. § 7203). He now appeals his

convictions, raising claims of (1) insufficient evidence to support his CCE

conviction; (2) error in failing to instruct the jury as to the individuals whom Mr.

McSwain managed, supervised, or organized in conducting a CCE; (3) error in

admitting expert testimony; and (4) prosecutorial misconduct under United States

v. Singleton , 144 F.3d 1343 (10th Cir.), ordered reheard en banc and opinion

vacated , 144 F.3d at 1361-62 (1998), on rehearing en banc , 165 F.3d 129, cert.

denied , 119 S.Ct. 2371 (1999). He also argues (5) that if the CCE conviction is

upheld, the conspiracy conviction should be vacated as a lesser included offense

or, in the alternative, that he received an improper sentence on the dual object

conspiracy count. Finally, (6) he raises three issues in a pro se supplemental

brief. For the reasons set forth below, we affirm the CCE conviction, the Travel

Act convictions, the PCP convictions, and the tax convictions. We REVERSE

2
and REMAND with direction to VACATE the narcotics conspiracy conviction

and sentence.

I. BACKGROUND

This case involves an Oklahoma-based piperidine and phencyclidine (PCP)

distribution network. In 1986, the government charged Mr. Emmett McSwain 1

along with eight others in a thrity-one count indictment. His codefendants (with

the exception of one) were tried in 1986. Mr. McSwain was not tried then

because he had escaped from a prior term of custody and remained a fugitive.

Mr. McSwain was re-arrested in 1996 and tried in 1997. His ex-wife, Ms.

Linda Jean Williams, 2
provided the bulk of the testimony at that trial. She

testified that Mr. McSwain had been incarcerated in August 1982 for conspiracy

to manufacture PCP. See Rec. vol. V, at 95. She stated that, beginning at that

time and at her husband's direction, she arranged for Mr. Roger Strader, Mr.

Walter Roberts, and Mr. Ronnie McSwain (Mr. Emmett McSwain's brother) to

make shipments to California of piperidine, a precursor chemical to PCP. See id.

1
Throughout the opinion, we will refer to Mr. Emmett McSwain as Mr.
McSwain and to his brother as Mr. Ronnie McSwain or Ronnie.
2
Mr. McSwain's ex-wife, Linda Jean, had changed her last name to Williams by
the time of trial. We therefore refer to her as Ms. Williams throughout the opinion.
She should not be confused with Ms. Linda Sue McSwain, the wife of Emmett
McSwain's brother, Ronnie. Nor should she be confused with the buyer, Mr. James
Williams.

3
at 97-98. She set up a speaker phone system so Mr. McSwain could communicate

with others by phone from prison. See Rec. vol. IV, at 55-56. She also kept a

ledger and cash box related to the deliveries at the home of Ronnie McSwain and

his wife, Linda Sue. See id. at 64-65. She testified as to the partnership

relationship between Mr. McSwain and his codefendant Louie Paul Baez, Sr. and

Mr. Baez's wife Marilyn. Finally, she testified as to various piperidine sales she

had made to certain buyers. See Rec. vol. V, at 97. These buyers included: A.J.

Guillard, Carol Guillard, Wanda Lewis, and James Williams.

Mr. Strader (also known as “Bear”), Mr. Roberts, Ms. Linda Sue McSwain,

and three of the buyers also testified at the second trial (Mr. Williams died prior

to the trial). Mr. Estes, a friend of Mr. Strader's who subsequently became

involved with the piperidine deliveries, also testified.

Mr. Strader testified that, shortly before going to prison, Mr. McSwain

taught him and Mr. Roberts how to make PCP, and the three made a batch. See

Rec. vol. V, at 242-46. He described a number of piperidine deliveries to

California he made at Mr. McSwain's behest, using Ms. Williams as a point of

contact after Mr. McSwain's incarceration. See id. at 234-44. He testified that

he made PCP with Mr. Roberts and Mr. Estes and recalled taking one trip to

deliver piperidine with Mr. Estes. See id. at 249. He stated that Mr. Estes “just

got part of the money on the PCP we made. He didn't get any for making the

4
trip.” Id. at 251.

Mr. Estes' testimony differed from Mr. Strader's. Although he confirmed

having made PCP with Mr. Roberts and Mr. Strader, he testified he had made

three to four trips to deliver piperidine with Mr. Strader. See id. at 212-13. He

stated Mr. Strader had paid him $500 for each trip and had paid his expenses.

See id. Other than that, Mr. Estes stated he had had nothing to do with the

money. See id. at 216. He testified that he accompanied Mr. Strader to pick up a

barrel and deliver it to Ronnie McSwain's house. See id. at 215. He stated he

met Mr. Emmett McSwain only once, see id. at 207, and thought he had met Ms.

Williams only once as well. See id. at 216.

Mr. Roberts' testimony paralleled that of Mr. Strader. He described how

Mr. McSwain taught him to make PCP and discussed moving a barrel of

piperidine, as well as making several sales and deliveries for Mr. McSwain with

the help of Mr. Strader. See id. at 193-97.

Ms. Linda Sue McSwain (Ronnie McSwain's wife) testified that the ledger

and cash box were kept at her house, and confirmed she had gone to California.

See Rec. vol. VI, at 294-95. But, she denied having done anything illegal for Mr.

McSwain and gave innocent explanations for her actions. See id. at 305.

As to the buyers, Ms. Guillard testified that she bought ten to fifteen

gallons of piperidine from Ms. Williams from late 1982 through 1984. See Rec.

5
vol. V, at 147. She testified that the price was always the same, and she would

simply let Ms. Williams know when she wanted to buy some. See id. at 147, 153.

She always paid in full, either in cash or by giving Ms. Williams furs, jewelry or

cars. See id. at 107-09 (Ms. Williams’ testimony), 148 (Ms. Guillard's

testimony).

Ms. Guillard's husband, A.J. Guillard, was incarcerated with Mr. McSwain

in El Reno and had friends in New Orleans who wanted to obtain piperidine. See

id. at 170. He testified that he discussed this with Mr. McSwain, who claimed to

have access to piperidine through his wife. See id. Mr. Guillard maintained that

Mr. McSwain indicated the operation was his. Mr. Gulliard made two deals with

Mr. McSwain for gallon quantities on behalf of his friends. See id. at 170, 173.

He did not negotiate a price but gave Mr. McSwain a gold-and-diamond

medallion for one deal and “was supposed to owe him some more money.” Id. at

171, 174.

Wanda Lewis testified that she spoke to “Linda” and had a discussion with

“someone in Oklahoma” regarding the cost and arrangements for one long-

distance delivery of piperidine. See Rec. vol. VI, at 287. She stated she received

instructions that the chemical could be picked up at a mile marker on a highway,

and arranged for someone to retrieve it and leave money in exchange. See id. at

287-88.

6
 According to Ms. Williams' testimony, Mr. Williams ( also known as

“Unc”) purchased six to eight barrels from her, sometimes by the gallon and

sometimes by the barrel. See Rec. vol. V, at 81. Ms. Williams stated that when

Mr. Williams bought by the barrel, which cost $110,000, “he wouldn't always

have that much money,” so he would pay over time. Id. at 81-82.

A special agent, James A. Dockery, who had investigated the case for the

DEA also testified. He stated that, in his opinion, Mr. McSwain and Ms.

Williams were chiefly responsible for the sale of piperidine. See Rec. vol. VI, at

336.

After a four-day trial, a jury convicted Mr. McSwain on all counts. He was

sentenced to concurrent, pre-guideline sentences of fifteen years imprisonment on

the CCE count, ten years on the conspiracy and phencyclidine counts, five years

on the Travel Act counts, and one year on each tax count. The court also

imposed a special term of parole of two years on the phencyclidine count.

II. DISCUSSION

A. Sufficiency of the evidence

Mr. McSwain contests the sufficiency of the evidence to uphold his

conviction for operating a continuing criminal enterprise under 21 U.S.C. §

848(c). We review de novo whether sufficient evidence exists in the record to

7
support a conviction, see United States v. McDermott , 64 F.3d 1448, 1457 (10th

Cir. 1995), asking “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v.

Apodaca , 843 F.2d 421, 425 (10th Cir. 1988) (quotation omitted). “[T]he

evidence presented to support the conviction must be substantial; that is, it must

do more than raise a mere suspicion of guilt.” United States v. Garcia-Emanuel ,

14 F.3d 1469, 1472 (10th Cir. 1994). 3

Section 848(c) states that an individual engages in a CCE when:

(1) he violates any provision of this subchapter or subchapter II of this
chapter the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of this
subchapter or subchapter II of this chapter--

(A) which are undertaken by such person in concert with five or
more other persons with respect to whom such person occupies a
position of organizer, a supervisory position, or any other position of

3
We note the government suggests Mr. McSwain raises this argument for the
first time on appeal. Mr. McSwain moved, however, for a judgment of acquittal on the
grounds of sufficiency of the evidence on the CCE count at the close of trial. See Rec.
vol. VII, at 348. Although Mr. McSwain specifically challenged the government’s
evidence with regard to the “substantial income” requirement, both the government and
the trial court considered and reviewed the sufficiency of the evidence with respect to
the five person requirement. See Rec. vol. VII, at 349-50, 352-53. Considering this, we
find that the issue was properly preserved for appellate review. See Gordon v. County
of Rockland , 110 F.3d 886, 887 n.2 (2d Cir. 1997) (issue preserved for appellate review
when although defendant did not “mention [the specific issue] to the trial court . . . [the
trial judge] intervened and on his own discussed the [specific] issue”).

8
 management , and

(B) from which such person obtains substantial income or resources.

21 U.S.C. § 848(c) (emphasis added).

In considering § 848, we give the operative terms “organizer,”

“supervisor,” and “manager” their nontechnical, everyday meanings. See United

States v. Jenkins , 904 F.2d 549, 553 (10th Cir. 1990).

[A]n organizer can be defined as a person who puts together a number of
people engaged in separate activities and arranges them in their activities
in one essentially orderly operation or enterprise. The ordinary meaning of
the word “organizer” does not carry with it the implication that the
organizer is necessarily able to control those whom he or she organizes.
Although cases involving well-defined chains of command under the
control of a “King Pin” offer the clearest examples of organization,
supervision, or management, . . . the necessary showing can plainly be
made in the case of a less structured enterprise.

Apodaca , 843 F.2d at 426 (internal citations and quotations omitted). “[A]

relationship of supervision is created when one person gives orders or directions

to another person who carries them out.” Id. (quoting United States v. Stratton ,

779 F.2d 820, 827 (2d Cir. 1985)).

The CCE statute thus imposes additional criminal liability for defendants

who exercise “differing levels of managerial control and coordination,” but the

common denominator is the requirement that the defendant play some managerial

role. Id. For example, “[w]hile proof of a buyer-seller relationship alone is

insufficient to establish a managerial role, additional evidence of formal or

9
informal authority or responsibility respecting a purchaser's conduct may

suffice.” Jenkins , 904 F.2d at 553 (citation omitted).

The managerial relationship requirement is flexible. “[T]he defendant

need not be the dominant organizer or manager of the enterprise; he need only

occupy some managerial position with respect to five or more persons.” Id.

Further, “[t]he defendant's relationships with the other persons need not have

existed at the same time, the five persons involved need not have acted in concert

at the same time or with each other, and the same type of relationship need not

exist between the defendant and each of the five.” Apodaca , 843 F.2d at 426.

Finally, a defendant may not insulate himself from liability by delegating

authority. Thus, “the defendant need not have had personal contact with each of

the five persons involved, . . . [n]or must each transaction with or instruction to

those persons organized or managed specifically originate with the defendant.”

Id. “The mere delegation of managerial and supervisory duties will not defeat an

individual's ultimate status as organizer, supervisor, or manager.” Id.

With these principles in mind, we proceed to consider Mr. McSwain’s

argument that the evidence was insufficient to show that he was an “organizer” or

“supervisor” or that he occupied a “position of management” with respect to five

or more persons. Upon review of the record, we are not persuaded by his

contentions.

10
 1. Mr. Roberts, Mr. Strader, and Ronnie McSwain

First, Mr. McSwain apparently – and correctly – does not contest that the

evidence was sufficient to show the necessary managerial relationship as to

Walter Roberts, Roger Strader, and Ronnie McSwain. With respect to Mr.

Roberts and Mr. Strader, both testified that Mr. McSwain taught them to make

PCP before he was incarcerated, and that they transported piperidine for him at

that time. See Rec. vol. V, at 185-88; 228-46. They testified they continued to

transport piperidine intrastate and interstate and collected payments for him after

his incarceration at the direction of his wife, Ms. Williams. See id. at 99, 112,

188, 246. Ms. Williams testified she dealt with both at the direction of Mr.

McSwain. See id. at 96-97.

With respect to Ronnie McSwain, the testimony of Mr. Roberts, Mr.

Strader, and Ms. Williams showed that he had also transported multiple gallons

and barrels of piperidine intra- and interstate, see Rec. vol. V, at 84, 89, and had

collected payments for the shipments. See Rec. vol. V, at 98, 252. Mr. Strader

and Mr. Estes testified they had dropped a barrel of piperidine at Ronnie

McSwain's house. See id. at 215, 252, 255. Ms. Williams testified she kept the

drug transaction ledger and cash box at Ronnie's house, and that Ronnie had

access to both, explaining specific ledger entries showing Ronnie had taken

withdrawals from the cash box to pay for expenses related to the piperidine

11
distribution. See id. at 64, 83-84. This evidence is sufficient to enable a rational

trier of fact to find beyond a reasonable doubt that he managed Mr. Roberts, Mr.

Strader, and Mr. Ronnie McSwain. See, e.g. , McDermott , 64 F.3d at 1457

(evidence of drug storage and transport and payment collection sufficient to

support CCE conviction).

That makes three CCE supervisees. In order to sustain the conviction,

however, the evidence must support the jury’s CCE determination with respect to

at least two more persons. For the reasons set forth below, we conclude that the

evidence is sufficient with respect to both Ms. Williams and Ms. Linda Sue

McSwain.

2. Ms. Williams

Mr. McSwain argues that the jury could not have considered Ms. Williams

because the indictment charged Mr. McSwain and Ms. Williams with acting “in

concert with at least five other persons.” Rec. vol. I, doc. 415, at 31 (emphasis

added). He argues that to allow consideration of Ms. Williams among the “other”

people would amount to an impermissible constructive amendment of the

indictment. We disagree.

The indictment does not limit the class of individuals from which the “five

other persons” might be drawn. Therefore, it does not expressly preclude

12
consideration of Ms. Williams with respect to Mr. McSwain. Thus, including

Ms. Williams as a CCE supervisee does not constitute a constructive amendment.

See United States v. Jones , 801 F.2d 304, 308 (8th Cir. 1986) (affirming two

codefendants’ convictions on CCE charge and counting second codefendant

among those controlled by first codefendant).

As to the evidence, Ms. Williams testified that she operated at the direction

of Mr. McSwain: “[Mr. McSwain] would tell me whether it would be okay to

sell piperidine to such and such a person for such and such a price, whether or

not I should sell an entire 55-gallon barrel of piperidine to James Williams, and

who would make the delivery, how they would make it, and how much they

would get paid for it.” Rec. vol. V, at 96-97. She testified she was responsible

for making entries in the ledger and for communicating with various buyers. See

id. at 94-95. She set up a speaker phone system so that Mr. McSwain could

communicate with others from prison. See Rec. vol. IV, at 55-56. Mr. Roberts

and Mr. Strader testified that, after Mr. McSwain’s incarceration, they dealt with

Mr. McSwain through Ms. Williams. See Rec. vol. V, at 188, 246. Accordingly,

a rational jury could infer that Mr. McSwain had the requisite managerial

relationship with her.

3. Ms. Linda Sue McSwain

13
 At trial, Ms. Williams testified that she kept a ledger, in which she

recorded cash withdrawals and deposits, and a cash box at Ronnie and Linda Sue

McSwain’s house. See Rec. vol. IV, at 62, 64. Ms. Williams testified that Ms.

McSwain had access to both the ledger and cash box and that Ms. McSwain had

made entries in the ledger. See id. at 65. Ms. McSwain testified that she

accompanied her husband, Ronnie, on a trip to California during which they

picked up money from Mr. Strader and that Ms. Williams had given them money

from the cash box to pay for the trip. See Rec. vol. IV, at 295-99. There was

also testimony that some piperidine was stored on the McSwain's property.

From this testimony, we conclude that a rational jury could have found the

necessary managerial relationship between Mr. and Ms. McSwain. Although Ms.

McSwain had innocent explanations for her participation and it was implied to

the jury that she was acquitted of a conspiracy charge in the original trial, we are

prohibited from reweighing the evidence. See Messer v. Roberts , 74 F.3d 1009,

1013 (10th Cir.1996). On the testimony presented, the jury could have

disregarded her explanations as not credible and accepted government’s evidence

of her involvement. Accordingly, we hold that the evidence was sufficient and a

rational jury could have counted Ms. McSwain toward the CCE requirement that

Mr. McSwain organized, supervised, or managed five other people.

14
 4. Conclusion

The government presented sufficient evidence to show that Mr. McSwain

managed, supervised, or organized at least five other people. We therefore reject

Mr. McSwain’s sufficiency of the evidence arguments.

B. Jury Instruction

Mr. McSwain argues that the district court's failure to sua sponte instruct

the jury as to which persons should not be considered individuals he managed

requires reversal of his CCE conviction. It appears to be an emerging view that

“[i]f certain individuals were, as a matter of law, incapable of counting as

supervisees, the jury needed to be instructed of this.” United States v. Barona ,

56 F.3d 1087, 1097 (9th Cir. 1994) (reversing CCE conviction where jury was

not given such an instruction). However, in light of Mr. McSwain’s failure to

adequately raise the issue in the district court proceedings, we conclude that the

district court’s instructions do not warrant reversal.

“[I]t is the defendant’s responsibility to take steps to see that the arguments

he would make in the appellate court are adequately preserved at trial.” United

States v. Roman , 870 F.2d 65, 72-72 (2d Cir. 1989). In the CCE context, “it is

incumbent on the defendant to request an instruction that the jury is not to

consider those persons as to whom he regards the evidence of supervision as

15
insufficient or at the very least to make an explicit objection to the trial court’s

instructing the jury that it may consider such persons.” Id. (citations omitted).

“As an alternative, the defendant may preserve his claim that certain bases are

impermissible by requesting that the jury be given interrogatories that will

require it to identify the basis for its verdict if that verdict is one of guilt.” Id.

Mr. McSwain did not take either of these steps. Moreover, he did not object to

the instructions that were given. Thus, he raises this issue for the first time on

appeal. Consequently, we can only reverse if he shows that there is: (1) “error,”

(2) that is “plain,” and (3) that “affect[s] substantial rights.” Fed. R. Crim. P.

52(b); United States v. Duran , 133 F.3d 1324, 1330 (10th Cir. 1998). “If all

three conditions are met, an appellate court may then exercise its discretion to

notice a forfeited error, but only if (4) the error ‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.’” Duran , 133 F.3d at 1336

(quoting United States v. Olano , 507 U.S. 725, 732 (1993)).

With regard to challenged jury instructions, “‘error’ arises if, considering

the instructions as a whole, the jury has been misled. Duran , 133 F.3d at 1330.

The error is “plain” if it is “obvious or clear, i.e., if it is contrary to well-settled

law. Id. “A plainly erroneous jury instruction affects a defendant’s ‘substantial

rights’ if the instruction concerns a principal element of the defense or an

element of the crime, thus suggesting that the error affected the outcome of the

16
case.” Id. “Finally, the fairness or integrity of a defendant's trial is ‘seriously

affected’ when the defendant has presented substantial evidence in support of an

affirmative defense which has been undermined by an erroneous instruction.” Id.

Applying this standard, we cannot say that the district court committed

plain error by failing to instruct the jury as to which individuals could not be

considered CCE supervisees. The prosecution submitted testimony and evidence

concerning the participation of each of the individuals it argued could be

considered for five persons necessary to trigger the CCE statute. The

determination of whether a person was “organized” or “supervised” is necessarily

a factual conclusion, and it is the role of the jury to make such factual

determinations. See United States v. Dillard , 43 F.2d 299, 307 n.8 (7th Cir 1994)

(“[U]nder . . . 21 U.S.C. § 848, the defendant's status as a ‘manager’ is a

question of fact for the jury, and thus, the terms ‘managed,’ ‘supervised,’ and

‘organized’ are interpreted according to their ordinary, lay meaning.”) (citing

United States v. Mejia-Orosco , 867 F.2d 216, 221 (5th Cir.), cert. denied , 492

U.S. 924, (1989); United States v. Oberski , 734 F.2d 1030, 1032 (5th Cir.1984)).

Moreover, the district court instructed the jury on the definition of organizer /

supervisor for CCE purposes and correctly gave a “unanimity instruction,”

informing the jury that “you must . . . unanimously agree on which five or more

17
persons committed the violations.” See Rec. vol I, doc. 415 (Jury Instruction No.

36) (emphasis in original). “‘[We] presum[e] that jurors, conscious of the gravity

of their task, attend closely the particular language of the trial court's instructions

in a criminal case and strive to understand, make sense of, and follow the

instructions given them .’” Olano , 507 U.S. at 740 (emphasis added) (quoting

Francis v. Franklin , 471 U.S. 307, 324, n.9 (1985)); see also United States v.

O’Brien , 131 F.3d 1428, 1432 (10th Cir. 1997) (holding that so long as the

district court gave a general unanimity instruction and there was not a realistic

possibility of jury confusion concerning the acts which support a defendant’s

CCE conviction, the court will assume that the jury understood it must be

unanimous on the specific findings underlying its verdict”).

For these reasons, we conclude that the district court’s failure to instruct

the jury as to which, if any, persons could not have been considered for Mr.

McSwain’s CCE conviction was not plain error. See United States v. Garcia-

Arbrego , 141 F.3d 142, 165-67 (5th Cir. 1998) (rejecting the defendant’s

argument that the instructions’ failure to inform the jury that certain individuals

could not be CCE supervisees constituted plain error); United States v.

Wilkinson , 754 F.2d 1427, 1432 (2d Cir. 1985) (rejecting, in light of her failure

to raise the issue at trial, the defendant’s argument that “if there was insufficient

evidence to find that any one of the individuals referred to in the indictment was

18
organized, supervised, or managed by [the defendant, the CCE] conviction must

be reversed because it would be impossible to know whether the jury relied on

that individual in finding the five-person requirement to have been satisfied”).

C. Admission of Testimony

Mr. McSwain challenges the district court’s decision to admit the

testimony of Special Agent James A. Dockery. We review a district court’s

decision to admit expert or lay testimony for an abuse of discretion. See United

States v. Sneed , 34 F.3d 1570, 1581 (10 th Cir. 1994). “The court's ruling cannot

be overturned unless it is ‘manifestly erroneous.’” Salem v. United States Lines

Co. , 370 U.S. 31, 35 (1962); Getter v. Wal-Mart Stores, Inc. , 66 F.3d 1119, 1124

(10th Cir. 1995). Because Mr. McSwain did not object below, we review his

claim for plain error. See Olano , 507 U.S. at 732.

Special Agent Dockery testified that, “it is our contention that Emmett

McSwain and his then-wife Linda McSwain were chiefly responsible [for the sale

of piperidine].” Rec. vol. VI, at 336. We agree with the government that this

testimony was admissible under Fed. R. Evid. 702. Rule 702 provides: “If

scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may testify thereto

19
in the form of an opinion or otherwise.” Thus, whether an expert's testimony

“will assist the trier of fact to understand the evidence or to determine a fact in

issue” is the central issue in determining admissibility.

Here, Agent Dockery testified that he had been employed with the Drug

Enforcement Administration from 1970 to 1989, and had been involved with a

dozen PCP investigations. Rec. vol. V, at 330-33. He also specifically testified

as to the interaction between added legislative reporting requirements and the

operations of piperidine distributors, noting, “[W]e were having a lot of trouble

tracing them, because people would get the chemicals and we knew they were

obtaining the chemicals and they would transfer them across the country or it was

a clandestine operation and they would create drugs with 'em.” Id.

We have previously concluded that the government may introduce expert

testimony as to the roles played by participants in a gambling operation, noting

that “other courts have permitted law enforcement witnesses to provide both lay

and expert opinions concerning the roles played by participants in a variety of

illegal activities . . . .” United States v. Pinelli , 890 F.2d 1461, 1474 (10th Cir.

1989). Given the complexity of the piperidine distribution network, the average

person's unfamiliarity with the workings of that network and the number of people

involved with it, “it was well within the discretion of the trial judge to permit

such testimony on the theory that [Agent Dockery's] specialized knowledge would

20
assist the trier-of-fact in understanding the evidence.” Id. at 1474.

We also agree that the testimony was properly admitted under Fed. R. Evid.

704, which allows for the admission of opinion testimony even though it

“embraces an ultimate issue to be determined by the trier of fact.” A.E. By and

Through Evans v. Independent School Dist. No. 25 , 936 F.2d 472, 476 (10th Cir.

1991) (citations omitted). Mr. McSwain maintains that Agent Dockery's reference

to the indictment impermissibly told the jury what result to reach. We disagree.

Agent Dockery's testimony did not overstep the bounds of permissible expert

testimony because it addressed a specific factual question: that is, Mr. McSwain's

involvement in the piperidine scheme. See Specht v. Jensen , 853 F.2d 805, 809

(10th Cir. 1988) (concluding that “the [expert] witness did not invade the court’s

authority by discoursing broadly over the entire range of the applicable law”

because his testimony “focused on a specific question of fact”). Moreover, the

testimony’s probative value in explaining the piperidine distribution network

outweighed any potential for prejudice. See Fed. R. Evid. 403.

D. Singleton claim

Mr. McSwain also argues on appeal that the prosecutor violated 18 U.S.C.

§ 201(c)(2) by entering into a plea agreement with a cooperating defendant. An

en banc decision of this court resolved the issue against his position in United

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States v. Singleton , 165 F.3d 1297 (10th Cir.) (en banc), cert. denied , 119 S.Ct.

2371 (1999). His claim therefore fails.

E. Lesser Included Offense

Mr. McSwain argues that his conspiracy conviction must be vacated

because it is a lesser included offense of a continuing criminal enterprise

conviction. See Rutledge v. United States , 517 U.S. 292, 300 (1996) (holding

that conspiracy under 21 U.S.C. § 846 is a lesser included offense of continuing

criminal enterprise under 21 U.S.C. § 848 and therefore ordering the conspiracy

count vacated). The United States does not contest this issue and, after reviewing

the record, we agree with Mr. McSwain.

F. Pro Se Supplemental Brief

We grant Mr. McSwain's motion to file an oversize supplemental brief and

to supplement the record on appeal. After reviewing the brief, we find his

arguments to be without merit. First, there is no Speedy Trial Act violation as

Mr. McSwain waived his right to a speedy trial on April 7, 1997. See Rec. vol. I,

doc. 397 (District Court Record). Second, Mr. McSwain was not denied due

process when indicted on PCP offenses because the term PCP was used

synonymously with phencyclidine at least as early as 1973. See, e.g. , United

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States v. Test , 486 F.2d 922, 924 (10th Cir. 1973), remanded on other grounds ,

420 U.S. 28 (1975). As Mr. McSwain admits, phencyclidine was a controlled

substance at the time of his violations.

Finally, because Mr. McSwain did not object to the introduction of his

codefendants’ guilty pleas at trial, we review the admission of this evidence for

plain error. See Olano , 507 U.S. at 732. For several reasons Mr. McSwain has

not established that the district court committed plain error.

First, with respect to all the witnesses but Mr. Williams, there was a proper

purpose for the introduction of the guilty plea evidence – so the jury might

consider it in evaluating the testifying codefendants’ credibility. Further, there is

no indication in the record that the prosecution improperly overemphasized the

evidence, and the record also shows that defense counsel made use of the

evidence to attempt to impeach the witnesses' credibility. See, e.g. , Rec. vol. V,

at 176, 221.

Most importantly, the court gave a cautionary instruction during the trial as

to “the very limited purpose to which you can put evidence of the conviction of a

witness for an offense in which a charge also is lodged against the defendant. It's

proper for consideration on the issue of the credibility of the witness; it may not

be used as a basis for drawing any inferences as to the guilt of the defendant.”

Rec. vol. V, at 181. And, in its final instructions to the jury, the court again

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cautioned the jury that “[t]he possible guilt of others should enter into your

deliberations only on the question of whether the government has proved beyond

a reasonable doubt that a defendant in the case committed the crimes charged.”

See Rec. vol. I, doc. 415 (Jury Instruction No. 9). These instructions cured any

potential prejudice. See United States v. Sanders , 929 F.2d 1466, 1470 (10th Cir.

1991) (“[A] cautionary instruction ordinarily is sufficient to cure alleged

prejudice to the defendant.”).

With respect to Mr. Williams, although we see no apparent legitimate

purpose for the introduction of his guilty plea as evidence, the record shows the

plea was referenced only once in passing. Therefore, in light of all of the

evidence presented at trial, we are not convinced that any possible error as to Mr.

Williams – or as to any of the other codefendants – had a “substantial influence

on the outcome of the trial.” United States v. Pedraza , 27 F.3d 1515, 1526 (10th

Cir. 1994) (citation omitted). Moreover, we are not “in grave doubt as to whether

it had such effect.” Id. at 1526.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Mr. McSwain’s convictions for

engaging in a continuing criminal enterprise, engaging in interstate travel to

facilitate narcotics distribution, possessing PCP and piperidine with the intent to

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distribute it, and failing to file federal income tax returns. However, we

REVERSE and REMAND with instructions to VACATE Mr. McSwain’s

conviction and sentence as to the narcotics conspiracy count. The motion to

supplement the record is GRANTED. Because we conclude that the district court

should vacate Mr. McSwain’s conspiracy convictions, we do not address his

challenge to his sentence on that charge. See Aplt. Br., at 47-50.

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