In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3601
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K ENNETH G AYTAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 815—Rebecca R. Pallmeyer, Judge.
A RGUED N OVEMBER 29, 2010—D ECIDED A UGUST 12, 2011
Before B AUER, W OOD , and S YKES, Circuit Judges.
S YKES, Circuit Judge. Kenneth Gaytan was indicted
for distribution of crack cocaine based on two controlled
buys arranged by the Federal Bureau of Investigation
in which Gaytan sold substantial quantities of crack to
a confidential informant named James Worthen. The
FBI captured the negotiations and both transactions
on audio recordings. Agents also conducted visual and
video surveillance of the controlled buys, but because of
gaps in this surveillance, they did not actually see—and
2 No. 09-3601
the video recordings do not show—money and drugs
changing hands. Nor did the government produce
Worthen to testify at trial. So in this sense the case
against Gaytan was circumstantial.
Before each transaction agents equipped Worthen with
buy money and an audio-recording device, and they
watched as he approached Gaytan at the prearranged
meeting places. On both occasions, however, Worthen
got into Gaytan’s car—out of the agents’ sight and the
surveillance video’s range. What the two said to each
other was audio-recorded, but what they did had to be
inferred. After each transaction Worthen returned to the
agents minus the money but in possession of the agreed-
upon quantity of crack cocaine. On the strength of the
audio recordings and testimony from the case agents, a
jury convicted Gaytan of two counts of distribution of
a controlled substance in violation of 21 U.S.C. § 841(a)(1).
Gaytan appeals, challenging the sufficiency of the
evidence to sustain his convictions. He also claims that
two of Worthen’s recorded statements were testimonial
hearsay, and the government’s use of them at trial
violated his Sixth Amendment right of confrontation as
explained in Crawford v. Washington, 541 U.S. 36 (2004).
He also mounts a nonconstitutional challenge to the
government’s use of these statements; he argues that
allowing the case agents to testify about Worthen’s re-
corded statements was unfairly prejudicial under
Rule 403 of the Federal Rules of Evidence. Finally,
Gaytan claims that Michael Moreland, one of the FBI
agents, gave expert testimony about some drug jargon
No. 09-3601 3
heard on the recordings without first having been dis-
closed or qualified as an expert witness.
We reject these arguments and affirm. The evidence
presented at trial was easily sufficient to sustain
Gaytan’s convictions. There was no Confrontation
Clause violation; the two recorded statements Gaytan
challenges were offered for context, not for their truth.
The FBI agents’ testimony about the recordings was not
unfairly prejudicial. Finally, the challenged portion of
Agent Moreland’s testimony did not amount to expert
opinion; even if it did, admitting it was not plain error.
I. Background
On two separate occasions in 2006, the FBI arranged
for its confidential informant James Worthen to make
controlled purchases of crack cocaine from Gaytan.
On March 8, 2006, FBI Special Agent Jennifer Hall
searched Worthen and equipped him with audio- and
video-recording devices and a transmitter. Under FBI
surveillance Worthen approached Gaytan’s home in Chi-
cago and called for him; Gaytan came out and together
they walked down the block. Worthen told Gaytan, “My
brother just came with some dude who’s tr-, trying to
get two ounces of rock.” Gaytan responded, “What you
need?” Worthen clarified, “I’m trying to get, f—ing um,
a couple O’s of rock, man.” Gaytan replied, “Where the
loot at? . . . I’ll give it to you for six bills, dog.” Gaytan
added, “[I]f you would’a came last night I would’a hit
you with a ball, man.” When Worthen told Gaytan he
needed to go get the money, Gaytan responded, “Come
on, I’ll be here.”
4 No. 09-3601
FBI agents again searched Worthen and gave him
$1,200 in buy money to complete the drug transaction
with Gaytan. Worthen then met with Gaytan in
Gaytan’s car. The agents could not see the two in the
car but were able to hear the conversation through the
transmitter. Gaytan expressed concern that “[t]he po-lice”
were “watching [his] crib” and told Worthen to meet
him at another location. The agents later observed
Worthen waiting at the agreed location and watched him
again get into Gaytan’s car. Gaytan then explained to
Worthen, “[O]ne is, is regular, like six hundred . . . another
one is better. You, this is smoking cane, right?” Worthen
answered, “Yeah . . . that’s what they want.”
Later in the conversation, Gaytan again asked Worthen,
“Where the loot at?” Worthen responded, “Right here . . .
(counting money) Six. So you’re going to get the other
one right now too?” Gaytan replied, “Yeah.” At this
point the sound of the car door opening and closing can
be heard. After a few minutes, Gaytan is heard reentering
the car and saying, “This one’s good. That one’s gonna
have you on your ass.” Worthen then left the car and
reported back to the agents, giving them two ounce-
size quantities of crack cocaine. The agents again
searched Worthen and found no money or other drugs.
The FBI arranged for Worthen to make a second con-
trolled purchase from Gaytan on April 19. The day
before this transaction, April 18, the agents recorded
a phone conversation in which Worthen asked Gaytan,
“[D]o you remember when I came over there with my
brother and them, and I got those two big ones from you?”
No. 09-3601 5
Gaytan responded, “Yeah.” Worthen told Gaytan that
he would like to make a similar purchase the next day,
and Gaytan said to call him. In another recorded call
on April 19, the two arranged to meet at a park. As in
the earlier transaction, before the meeting FBI agents
searched Worthen, supplied him with buy money, and
equipped him with an audio and video recorder and
a transmitter. He then entered the park to meet Gaytan.
Gaytan asked Worthen, “How much you got?” Worthen
replied, “How much is it?” Gaytan answered, “It’s like,
seven fifty.” Gaytan then told Worthen to wait while
he went to get his car.
Agents observed Gaytan leave the park and then pull
up in his car. Worthen got in and Gaytan drove to his
home. When they arrived, Gaytan said, “Hold on, I’ll
go get some squares.” Noises on the recording indicate
that Gaytan got out of the car and then returned. He
then moved his car to a nearby alley. Surveillance
agents, including Moreland, observed this maneuver.
Gaytan then told Worthen, “[J]ust get the money ready,
I’ll go get it.” More noises on the recording indicate
that Gaytan left the car, returned, and then said, “It’s right
there . . . . [I]t’s right there in the alley.” Finally, Gaytan
is heard dropping Worthen off and driving away from
the alley. The agents followed Worthen to a prearranged
meeting spot where he gave Agent Moreland two ounce-
sized quantities of crack; again, he no longer had the
buy money.
A grand jury returned an indictment charging Gaytan
with two counts of distributing more than 50 grams of
crack cocaine in violation of 21 U.S.C. § 841(a)(1). At
6 No. 09-3601
trial the government introduced portions of the audio
and video recordings from the two controlled buys and
the audio recordings of the phone calls setting up the
April 19 transaction. Agents Hall and Moreland also
testified about their role in setting up and observing
the controlled buys. From time to time during their testi-
mony, the agents were asked about what they heard on
the recordings. As relevant to Gaytan’s argument
here, Agent Moreland explained that he knew that the
April 19 controlled buy would involve two ounces of
crack cocaine because during the April 18 phone call,
“[Worthen] initially asked for ‘two big ones’ and referred
to a previous drug purchase on March 8th, 2006,” which
involved the same quantity. At several points during
the trial, the court instructed the jury that Worthen’s
recorded statements were not to be considered for
their truth, but rather to provide context for Gaytan’s
recorded statements.
The government also called several expert witnesses.
A chemist from the Drug Enforcement Administration
testified that she tested the substances involved in the
controlled purchases and confirmed that they contained
cocaine base. She also testified about drug weight; she
said the crack recovered on March 8 weighed 49.1
grams and the crack recovered on April 19 weighed
53.3 grams. DEA Officer Robert Coleman also testified as
an expert in narcotics trafficking. He identified the sub-
stances recovered on both dates as crack cocaine based on
their appearance and smell. He also offered testimony
interpreting some of the coded language heard in the
recordings. He said that “rock” meant crack cocaine,
“smoking cane” referred to getting high with crack
No. 09-3601 7
cocaine, “O” referred to an ounce of crack, and “eight-ball”
meant one-eighth ounce of crack.
The jury convicted Gaytan on both counts and found
that he distributed more than 5 but less than 50 grams of
crack cocaine on March 8, 2006, and more than 50 grams
of crack cocaine on April 19, 2006. The district court
sentenced Gaytan to concurrent terms of 125 months on
each count.
II. Discussion
Gaytan raises three arguments on appeal. First, he
claims the evidence was insufficient to sustain his con-
victions. Second, he argues that two of Worthen’s re-
corded statements were testimonial hearsay and their
admission violated the Confrontation Clause. Relatedly,
he claims that the FBI agents’ testimony about Worthen’s
recorded statements was unfairly prejudicial and should
have been excluded under Rule 403. Finally, Gaytan
argues that Agent Moreland gave an expert opinion
interpreting some coded language on the recordings
but was neither disclosed nor qualified as an expert
witness.
A. Sufficiency of the Evidence
In an appeal challenging the sufficiency of the evi-
dence, “we view the evidence presented at trial and draw
all reasonable inferences from that evidence in the light
most favorable to the government.” United States v. Rea,
621 F.3d 595, 607 (7th Cir. 2010). Reversal is appropriate
8 No. 09-3601
“ ‘only when the record contains no evidence, regardless
of how it is weighed, upon which a rational trier of
fact could find guilt beyond a reasonable doubt.’ ” United
States v. Sanchez, 615 F.3d 836, 842 (7th Cir. 2010) (quoting
United States v. Starks, 309 F.3d 1017, 1021 (7th Cir. 2002)).
To convict Gaytan on the two crack-cocaine charges
in the indictment, the jury was required to find the fol-
lowing elements beyond a reasonable doubt: (1) that
Gaytan knowingly and intentionally distributed a sub-
stance containing cocaine base to Worthen on March 8
and April 19; and (2) that he knew he was distributing
a controlled substance on both occasions. United States
v. Mendoza, 510 F.3d 749, 752 (7th Cir. 2007) (citing 21
U.S.C. § 841(a)(1)). Gaytan’s argument turns on the gov-
ernment’s failure to produce Worthen to testify at trial.
Because none of the FBI agents actually saw drugs or
money change hands, he insists there was a critical gap
in the evidence—a gap only Worthen could fill. Gaytan
claims that to carry its burden of proof, the government
needed to call Worthen to testify.
It is true that the FBI agents did not personally observe
Gaytan take the buy money from Worthen and give
Worthen crack cocaine in return, but the government’s
evidence—though largely circumstantial—was compelling
and entirely without innocent explanation. Before the
March 8 transaction, the FBI searched Worthen and
equipped him with buy money and a recording device.
They conducted visual surveillance and listened in as
Gaytan and Worthen discussed Worthen’s interest in
buying “a couple O’s of rock.” Gaytan offered “O’s,” or
ounces, at a price of “six bills” per ounce. Gaytan worried
No. 09-3601 9
that the police were watching and arranged to move
the transaction to a different location. Gaytan then con-
firmed that Worthen wanted “smoking cane.” Later,
Worthen can be heard audibly counting the buy money,
and once Gaytan was paid, Gaytan agreed to get “the
other one,” or the second ounce of crack cocaine. Gaytan
is then heard leaving the car, and when he returned,
he said to Worthen, “This one’s good.” When Worthen
rejoined the agents after the transaction was completed,
he no longer had the buy money but was in possession
of two separate ounce-sized quantities of crack cocaine.
The April 19 transaction proceeded in much the same
way, except that this time the jury heard portions of
recorded calls between Worthen and Gaytan arranging
a time and place for the exchange. Again, before the
controlled buy, the FBI searched Worthen, gave him
the agreed-upon buy money, and fitted him with a re-
cording device. Gaytan and Worthen then met at the
agreed location, again discussed price, and Gaytan
took Worthen to a more secluded location in the alley
behind his home. When they arrived in the alley, Gaytan
told Worthen, “[J]ust get the money ready, I’ll go get
it.” Gaytan is then heard leaving the car, returning a
moment later, telling Worthen, “[I]t’s right there in the
alley,” and driving off. When Worthen rejoined the
agents moments later, he (again) no longer had the buy
money and (again) was in possession of two ounce-
sized quantities of crack cocaine.
This evidence is sufficient to sustain Gaytan’s convic-
tions. That the agents could not see the hand-to-
hand transactions does not mean that the government
10 No. 09-3601
had to call Worthen to connect the dots. In United States
v. Tavarez, 626 F.3d 902 (7th Cir. 2010), we rejected a
similar challenge to the sufficiency of the evidence
in a controlled-buy case in which the confidential in-
formant did not testify and “[n]one of the witnesses
actually saw [the defendant] physically deliver [any
drugs].” Id. at 905-06. A surveillance video showed the
informant entering the building where the transaction
was to take place, and he later emerged with metham-
phetamine. Id. at 906. The defendant’s fingerprint was
found on the bag containing the drugs, and the buy
money was found in the pocket of a jacket in his bed-
room closet. Id. The circumstantial evidence in this case
is different but even stronger than that in Tavarez. Here,
unlike in Tavarez, the controlled buys were fully captured
on audio recordings. Gaytan’s own statements on
the recordings, together with the physical evidence and
the case agents’ testimony about the surrounding cir-
cumstances, unmistakably establish Gaytan’s guilt; this
evidence is not susceptible of an innocent explanation.
See United States v. Hendrix, 482 F.3d 962, 966 (7th Cir.
2007) (explaining that our focus is on what the jury
could reasonably infer from the evidence, not far-
fetched theories about ways an informant could have
obtained a controlled substance that lack evidentiary
support). Even without Worthen’s testimony, the evi-
dence was easily sufficient to convict.
B. Confrontation Clause and Rule 403 Claims
Gaytan next argues that two of Worthen’s statements
on the audio recordings were testimonial hearsay, im-
No. 09-3601 11
plicating his Sixth Amendment right to confront the
witnesses against him. Worthen was not an unavailable
witness, and Gaytan contends that admitting two of his
recorded statements violated the Confrontation Clause
as explained in Crawford. He also claims that the case
agents’ testimony about the recordings was unfairly
prejudicial and should have been excluded under
Rule 403 of the Federal Rules of Evidence. On the Con-
frontation Clause claim, our review is de novo. United
States v. Turner, 591 F.3d 928, 932 (7th Cir. 2010).
Gaytan’s Rule 403 argument is new on appeal; we
review forfeited evidentiary issues for plain error.1 United
States v. Rangel, 350 F.3d 648, 650 (7th Cir. 2003).
1. Confrontation Clause
Gaytan concedes that most of Worthen’s recorded
statements were admissible and do not implicate Crawford.
His Confrontation Clause argument focuses on two
statements that he claims were testimonial and offered
for their truth. The Sixth Amendment provides that an
1
In the district court, Gaytan generally objected on Rule 403
grounds to the admission of Worthen’s statements on the
recordings, but his Rule 403 argument on appeal is different.
Here, he claims unfair prejudice stemming from the FBI agents’
testimony about the recordings, not the admission of the
recordings themselves. To preserve an evidentiary error for
appellate review, the objecting party must state the specific
basis for the objection. Because Gaytan’s Rule 403 argument
has changed, our review is for plain error. United States v.
Rangel, 350 F.3d 648, 650-51 (7th Cir. 2003).
12 No. 09-3601
accused has “the right . . . to be confronted with the
witnesses against him.” U.S. C ONST. amend. VI. Ad-
mitting a witness’s out-of-court testimonial statements
when that witness is available to testify violates the ac-
cused’s Sixth Amendment right of confrontation, but
not when those statements are offered for a purpose
“other than establishing the truth of the matter asserted.”
Crawford, 541 U.S. at 59 n.9.
Gaytan’s Crawford argument focuses on the following
passage from the recording of the March 8 transaction:
Worthen: . . . My brother just came with some dude
who’s tr-, trying to get two ounces of rock. . . .
Gaytan: What you need? . . .
Worthen: I’m trying to get, f—ing um, a couple O’s of rock,
man.
Gaytan: Where the loot at? . . .
Worthen: How much do I need, for each ounce? . . .
Gaytan: I’ll give it to you, I’ll give it to you for six
bills, dog.
(Emphasis added.) Gaytan claims that the two italicized
statements were testimonial and offered for the truth:
that is, that Worthen was seeking crack cocaine and not
some other substance.
There’s no doubt that these statements were testi-
monial; Worthen made them with the knowledge that
FBI agents were recording the conversation “in anticipa-
tion of or with an eye toward a criminal prosecution”
of Gaytan. See United States v. Tolliver, 454 F.3d 660, 665
(7th Cir. 2006). But the two statements do not qualify
No. 09-3601 13
as hearsay because they were not offered for their
truth. The Confrontation Clause only comes into play
where “the defendant ma[kes] a showing that the
[g]overnment offered the declarant’s statements for the
truth of the matter asserted.” United States v. Nettles, 476
F.3d 508, 517 (7th Cir. 2007). As we have explained, a
confidential informant’s out-of-court statements are not
hearsay if they are offered not for the truth but to put
the defendant’s statements in context or to make what
he said and did in reaction to the informant’s state-
ments intelligible to the jury. See, e.g., United States v.
Bermea-Boone, 563 F.3d 621, 626 (7th Cir. 2009); Tolliver,
454 F.3d at 666.
Here, the government offered the challenged state-
ments not for their truth but to put Gaytan’s own words
in context and to help the jury make sense out of his
reaction to what Worthen said and did. Gaytan’s
responses “[w]hat you need?” and “[w]here the loot at?”
would have been unintelligible without the context pro-
vided by Worthen’s statements about his or his brother’s
interest in “rock” or “a couple O’s of rock.” See United
States v. York, 572 F.3d 415, 427 (7th Cir. 2009) (informant’s
statement “Just bring me nine” was admissible to place
defendant’s response “You want me to cook it?” in con-
text). These statements were not being offered to show
that some “dude” with Gaytan’s brother actually wanted
to buy two ounces of “rock”; the statements were offered
to show their effect on the listener, Gaytan. In other
words, they were offered to put Gaytan’s response in
context—to show he understood Worthen was looking
for crack and responded accordingly. Moreover, at
several points during the trial, the district court told the
14 No. 09-3601
jury that Worthen’s recorded statements were not to be
considered for their truth but only to provide context
for Gaytan’s own statements. See United States v. Van
Sach, 458 F.3d 694, 701-02 (7th Cir. 2006) (finding no
Confrontation Clause violation and emphasizing
that “the court gave the jury a limiting instruction, ex-
plaining that the CI’s statements were only to provide
context for the defendant’s admissions”).
We have held that admitting a confidential informant’s
out-of-court statements might implicate the Confronta-
tion Clause if the circumstances suggest that the
informant used those statements to “put words into [a
defendant’s] mouth.” See Nettles, 476 F.3d at 518. This
is not such a situation. It is true that Worthen, not
Gaytan, initiated the March 8 drug transaction, but
nothing about the recorded conversation suggests
that Worthen was putting words in Gaytan’s mouth.
Worthen’s references to “rock” did not, as Gaytan argues,
inculpate Gaytan in a way he would not have been other-
wise. The government was not required to prove that
Worthen actually wanted to buy “rock”; the govern-
ment was required to prove that Gaytan knew he was
distributing a controlled substance. Unites States v. Barlow,
310 F.3d 1007, 1012 (7th Cir. 2002) (“[A]ctual knowledge
of the identity of a drug is not an element of 21 U.S.C.
§ 841(a).”). In short, the challenged statements were
offered to help the jury make sense of Gaytan’s abbrevi-
ated and coded responses to Worthen. Accordingly, the
district court properly admitted Worthen’s out-of-court
statements—not for their truth but to contextualize
Gaytan’s own statements without putting words in his
mouth. There was no Confrontation Clause violation.
No. 09-3601 15
2. Prejudice under Rule 403
Gaytan also argues that the FBI agents should not
have been permitted to testify about Worthen’s state-
ments when Worthen himself could have been called as
a government witness. Gaytan frames this as a Rule 403
argument; relevant evidence may be excluded when
its “probative value is substantially outweighed by the
danger of unfair prejudice.” FED. R. E VID. 403. Gaytan
relies on the principle that a court may abuse its dis-
cretion by admitting a highly prejudicial form of evi-
dence when a much less prejudicial but equally
probative alternative is available. Old Chief v. United
States, 519 U.S. 172, 191-92 (1997) (district court abused
its discretion under Rule 403 in admitting full record of
defendant’s prior conviction when it could have instead
admitted a stipulation that he had a prior conviction).
He claims he was unfairly prejudiced when the district
court let the FBI agents testify about what occurred out
of their sight during the controlled transactions when
the less prejudicial alternative of calling Worthen to
testify was available.
The Old Chief analogy is inapt. This is not a case in
which a highly prejudicial form of evidence was ad-
mitted when another, less prejudicial form was available.
The agents readily admitted that they did not actually
see money and drugs change hands. In her testimony
in connection with the March 8 transaction, Agent Hall
admitted that she did not personally observe the trans-
fer of drugs and that the video recording was of poor
quality and did not show the exchange. Likewise, Agent
Moreland testified that he did not personally observe
16 No. 09-3601
Gaytan exchange drugs for money on April 19. That
they did not see the hand-to-hand transactions does not
diminish the overall probative value of their testimony
or make it unfairly prejudicial for them to testify about
what they heard on the recordings. They observed most
of what occurred and heard what was happening
through the transmitter. Gaytan’s attorney fully ex-
plored the limits of agents’ surveillance on cross-examina-
tion. There was no unfair prejudice.
Gaytan’s position seems to be that only Worthen could
answer certain questions about what happened during
the controlled buys. This is essentially a reframing of
the sufficiency-of-evidence challenge, which we have
already rejected. There is no categorical rule that the
government must produce its confidential informant to
testify against a defendant. See, e.g., Hendrix, 482 F.3d at
967 (failure to call informant did not entitle defendant
to new trial). There was no Rule 403 error here, let
alone a plain error.
C. Agent Moreland’s Testimony About the Recordings
Finally, Gaytan objects to a short line of inquiry during
Agent Moreland’s testimony after the government
played a portion of the April 18 recorded phone call in
which Worthen reminded Gaytan that he had recently
“got those two big ones” from Gaytan. The prosecutor
asked Agent Moreland how he knew from this exchange
“that the deal was on for the next day for two ounces
of crack cocaine.” Agent Moreland responded:
Because the source initially asked for “two big ones”
and referred to a previous drug purchase on March 8,
No. 09-3601 17
2006. The defendant responded, “Yeah.” And when
the source [set] the time at 2 o’clock, the defendant
asked, “For sure?” And the source said, “Yes.” And
they agreed on the time of 2 o’clock.
Gaytan characterizes this response as expert testimony
about the meaning of the phrase “two big ones” in nar-
cotics parlance. Because the government did not qualify
Agent Moreland as an expert under Rule 702 of the
Federal Rules of Evidence, Gaytan argues that permitting
him to testify about the meaning of “two big ones” was
error. He did not object to this part of Agent Moreland’s
testimony below, so again our review is for plain er-
ror. See Rangel, 350 F.3d at 650.
The government characterizes Agent Moreland’s testi-
mony as permissible lay-opinion testimony under
Rule 701, which provides:
If the witness is not testifying as an expert, the wit-
ness’ testimony in the form of opinions or inferences
is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness,
(b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other special-
ized knowledge within the scope of Rule 702.
F ED. R. E VID. 701. A law-enforcement officer’s testimony
is a lay opinion if it is “limited to what he observed . . . or
to other facts derived exclusively from [a] particular
investigation.” United States v. Oriedo, 498 F.3d 593, 603
(7th Cir. 2007). On the other hand, an officer testifies as
an expert when he brings “the wealth of his experience
as a narcotics officer to bear on those observations and
18 No. 09-3601
ma[kes] connections for the jury based on that specialized
knowledge.” Id. We have held that translating “drug
jargon and code words that might seem entirely
innocuous to an untrained jury” is expert testimony
under Rule 702. York, 572 F.3d at 423.
In York the government properly identified and
qualified an officer who testified as an expert to inter-
pret the defendant’s recorded drug-coded language, but
then elicited problematic “dual” testimony from another
officer about drug jargon, essentially treating the second
officer as both a fact witness and an expert. See id. at 423-
27. We held that eliciting the “dual” testimony from the
officer was error. Id. at 426. Here, as in York, the gov-
ernment identified a law-enforcement expert (Officer
Coleman) who would offer opinion testimony about the
meaning of the drug code in the audio recordings. The
government did not identify or qualify Agent Moreland
as an additional expert for this purpose, but unlike the
second officer in York, Moreland was never treated as
a dual-capacity witness. He was not asked to define
“two big ones” or any other coded language on the re-
cordings.
Perhaps Agent Moreland’s testimony can be under-
stood to contain an implicit expert opinion. He explained
that he knew the April 19 deal would involve two
ounces of crack cocaine based on the April 18 recorded
conversation, which contained a discussion of Worthen’s
earlier request for “two big ones.” This testimony
suggests that the reference to “two big ones” meant two
ounces of crack cocaine, and Moreland’s familiarity with
this terminology might have been attributable to the
No. 09-3601 19
Gaytan investigation in particular or to his training and
experience as a narcotics officer in general, or perhaps
both. See York, 572 F.3d at 423; Oriedo, 498 F.3d at 603.
Admitting dual expert and lay testimony by a witness
generally requires precautionary instructions to the
jury. See United States v. Parra, 402 F.3d 752, 760 (7th Cir.
2005) (if a witness testifies in a dual capacity, the court
should give “cautionary instructions”); see also York,
572 F.3d at 426 (court erred in admitting agent’s expert
interpretations of code words in the midst of his lay
testimony without flagging for the jury that he was now
testifying in his expert role).
We need not decide whether Agent Moreland’s testi-
mony about “two big ones” crossed the line and amounted
to expert testimony. Under a plain-error standard, a
defendant’s conviction will stand if the claimed evidentiary
error was harmless. York, 572 F.3d at 429. “Harmless-
ness means that the jury would have convicted even
absent the error[].” Id. As we have noted, the evidence
in this case, though mostly circumstantial, was very
strong. The government did not rely on Agent Moreland’s
testimony to interpret Worthen’s reference to “two big
ones” or to establish that the substance Gaytan distrib-
uted was in fact crack cocaine. In closing argument the
prosecutor referred to the April 18 recording not to estab-
lish the meaning of “two big ones” or to highlight
Agent Moreland’s testimony, but instead to remind the
jury that Worthen “[was] talking about that March deal.”
In York we held that an error in admitting an officer’s
dual testimony as both a transactional witness and an
expert on drug jargon was harmless (and thus not plain
error); we found it “impossible” to conclude that the
20 No. 09-3601
exclusion of this small portion of the agent’s testimony
“would have caused the jury to reach a different verdict.”
Id. at 429-30. The same is true here. Even if Agent More-
land’s comment about “two big ones” was improper
expert opinion, the admission of this small bit of testi-
mony does not qualify as plain error.2
A FFIRMED.
2
In his opening brief, Gaytan sought to preserve his right to
petition the district court to reduce his sentence should the
Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124
Stat. 2372, or the corresponding amendments to the sen-
tencing guidelines be applied retroactively. We have since
held that the FSA is not retroactive. United States v. Fisher, 635
F.3d 336, 340 (7th Cir. 2011); United States v. Bell, 624 F.3d 803,
814-15 (7th Cir. 2010). On July 1, 2011, the Sentencing Commis-
sion announced that its amendments to the crack-cocaine
sentencing guidelines would become retroactive effective
November 1, 2011, absent congressional action to the contrary.
See News Release, U.S. Sentencing Commission, U.S. Sentencing
Commission Votes Unanimously to Apply Fair Sentencing Act
of 2010 Amendment to the Federal Sentencing Guidelines
Retroactively (June 30, 2011), available at http://www.ussc.gov/
Legislative_and_Public_Affairs/Newsroom/Press_Releases/
20110630_Press_ Release.pdf. The effect of these amendments
on Gaytan’s sentence is a matter for the district court on
a motion for sentence modification pursuant to 18 U.S.C.
§ 3582(c)(2).
8-12-11