United States v. Alton Benn

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4522

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ALTON BENN,

Defendant – Appellant.

No. 12-4803

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

SEAN DARNELL JEFFRIES,

Defendant – Appellant.

No. 12-4804

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.
ROBERT EUGENE POOLE,

Defendant – Appellant.

No. 12-4851

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KEVIN GORDON HAITH,

Defendant – Appellant.

Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00127-TDS-2; 1:11-cr-00127-TDS-1;
1:11-cr-00127-TDS-4; 1:11-cr-00127-TDS-3)

Argued: April 11, 2014 Decided: May 21, 2014

Before KING, GREGORY, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Sandra Barrett, Asheville, North Carolina; Robert Lynn
McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, LLP, Greensboro,
North Carolina; John Clark Fischer, RANDOLPH & FISCHER, Winston-
Salem, North Carolina; Thomas Hilton Johnson, Jr., GRAY JOHNSON
BLACKMON LEE & LAWSON, LLP, Greensboro, North Carolina, for
Appellants. Lisa Blue Boggs, Stephen Thomas Inman, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee. ON BRIEF: Ripley Rand, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.

2
Unpublished opinions are not binding precedent in this circuit.

3
PER CURIAM:

In this multi-defendant appeal, we are faced with

several assignments of error. Four co-defendants -- Alton Benn,

Sean Darnell Jeffries, Robert Eugene Poole, and Kevin Gordon

Haith (collectively, “Appellants”) -- were tried by a jury and

convicted of conspiracy to distribute crack cocaine and

unlawfully possess cocaine hydrochloride with the intent to make

crack cocaine. Appellants Poole and Haith were also convicted

of related firearm charges. Following trial, Appellants were

sentenced to terms of imprisonment varying from 114 to 440

months.

Appellants claim their conspiracy convictions were

based on insufficient evidence; the testimony of an unindicted

co-defendant, who testified pursuant to an immunity agreement,

was unreliable; and the Government’s expert witness was neither

timely noticed, nor qualified. Appellants Benn, Jeffries, and

Haith challenge their sentences on various grounds, including

that they were in contravention of the recent Supreme Court

decision Alleyne v. United States, 133 S. Ct. 2151 (2013).

Appellant Haith also challenges his career offender and armed

career criminal designations as violative of our decision in

United States v. Davis, 720 F.3d 215 (4th Cir. 2013). For the

reasons that follow, we affirm.

4
 I.

A.

The facts underlying this appeal are presented in the

light most favorable to the prevailing party at trial -- the

Government. See United States v. Lespier, 725 F.3d 437, 440 n.2

(4th Cir. 2013). The Greensboro Police Department (“GPD”) began

an investigation into a purported crack cocaine conspiracy in

Greensboro, North Carolina, in 2007. The conspiracy was

believed to be run by a distribution organization known as the

“Bundy Boys.” GPD Narcotics Officer R.L. Alston began

investigating the alleged leader of the Bundy Boys, Appellant

Benn (a.k.a. “Bundy” or “B”). Alston learned that, along with

Appellant Benn, Leonard Gary Williams (a.k.a. “G”), and

Appellants Poole (a.k.a. “Pooh”), Jeffries (a.k.a. “Fuzz”), and

Haith (a.k.a. “Smoke”) were involved in the Bundy Boys’

distribution of crack cocaine between 2006 and 2010.

As part of his investigation, Officer Alston conducted

surveillance at Appellant Benn’s residence, and saw other

members of the Bundy Boys coming and going on a regular basis.

On May 24, 2007, Officer Alston conducted a trash pull at the

residence and found a wrapper normally used to wrap kilograms of

cocaine. After field-testing, it was revealed that the wrapper

contained Appellant Benn’s left palm print, and the residue on

the wrapper tested positive for powder cocaine. On August 30,

5
2007, Officer Alston conducted another trash pull at the house,

and found a white powder substance inside a trash bag. That

substance also field-tested positive for cocaine. Officer

Alston continued periodic surveillance of Appellant Benn’s house

from 2007-09. During this time, the GPD also conducted

searches, and sometimes arrests, at around a dozen other

residences in Greensboro, each of which had some link to the

Bundy Boys.

1.

“The Bundy Boys”

At trial, both Tashee Mumford and Williams explained

how they came to know the “Bundy Boys” and the inner-workings of

their organization.

a.

Tashee Mumford’s Testimony

Mumford testified that Appellant Haith introduced her

to Williams and Appellant Benn, and through those individuals,

she met Appellant Jeffries. She described Williams and

Appellants Benn and Jeffries as the “Bundy Boys.” She also

testified that Appellant Poole was “with [Williams]” and would

“hold the drugs sometimes,” that is, “keep [them] safely,

stor[e]” them “in case . . . you need to go get some more or run

6
out.” J.A. 1420-21. 1 In addition, Appellant Poole would “keep

[the drugs] at his house, or whatever location he was in, for

the next time somebody needs some.” Id. at 1421.

During her association with the Bundy Boys, Mumford

sold crack cocaine at a house on Bragg Street in Greensboro with

Appellant Haith, and those drugs were brought there by Appellant

Benn or Williams. She said that after the drugs were sold, she

or Appellant Haith would give the money to Appellant Benn. She

and Appellant Haith also sold crack from a house on Charlotte

Street. Later, Mumford moved away from Appellant Haith and

started selling drugs at an apartment on Waugh Street. She

explained that at that time, Williams and Appellants Benn and

Jeffries were on “the same team.” J.A. 1432.

Mumford described the structure of the Bundy Boys as

follows:

Bundy [Appellant Benn] would be first, or the head,
person and then you have G [Williams] under him. Then
you have, like, maybe Fuzz [Appellant Jeffries] under
G, and then you will have all other workers or the
people that was under them . . . who would run the
houses, and then you would have us, the workers, that
are in the house. So, basically, The Bundy Boys were
the head of the whole operation.

J.A. 1457. Mumford explained that if Appellant Benn could not

bring them drugs, Williams would, and when he could not,

1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

7
Appellant Jeffries would. She said sometimes Appellant Jeffries

would “run a house.” Id. at 1458. According to Mumford, after

Williams was arrested, as explained below, Appellant Jeffries

took over Williams’s duties.

b.

Leonard Gary Williams’s Testimony

Williams was arrested for selling crack cocaine with

the Bundy Boys in April 2009. GPD officers raided his house on

Oak Street and found crack cocaine and a .380 handgun. Williams

did not remain in jail long, however, because Appellant Benn

bonded him out. Williams continued to sell drugs to pay for his

lawyer. He sold crack until he was again arrested in February

2010 by Officer Alston. After this arrest, he agreed to speak

to federal agents in exchange for immunity.

Williams explained that he met Appellant Benn in

Connecticut 20 years previously, and the two moved to North

Carolina together around 1996. He said he met Appellant Haith

in North Carolina in 1996, and Appellants Jeffries and Poole in

North Carolina around 2004. From 2006 to his arrest in 2010,

Williams’s main source of income was selling crack cocaine. He

and Appellant Benn would travel to purchase powder cocaine, and

afterwards, Appellant Benn would cook it into crack cocaine.

Williams testified that the crack cooked by Appellant

Benn would be sold at Pearson Street, Holt Street, McConnell

8
Road, Bragg Street, Charlotte Street, Winston Street, and Duke

Street in Greensboro. He testified that Appellant Poole “might

sell very little, but he would be the doorman sometime, and he

will either ride with me or Mr. Benn and hold the drugs while

they were delivered . . . [j]ust in case the police stopped, he

would be the one who [would] take the charge or either run with

it.” J.A. 206.

As to the organizational structure of the Bundy Boys,

Williams testified,

[W]hen I first came, I had to work my way up. I ain’t
just start becoming the one who delivered the drugs.
I had to work the window, watch out for the police. I
had to sell the crack cocaine, and then I move up into
the one that would help bag up the crack cocaine and
deliver it. . . . It was like Mr. Benn was the
president, I was the vice president, and everybody
else was like the workers. . . . Sometime [the
workers] would switch up from selling to watching the
window or the door. That’s about it.

J.A. 205. Williams explained that he stopped being the “vice

president” sometime in 2008. At that time, “Mr. Benn and Mr.

Jeffries became more closer than me and Mr. Benn.” Id. at 247.

2.

Transporting Drugs/Money

According to Williams, Appellant Benn made powder

cocaine purchases in Asheboro, Winston-Salem, and Atlanta. He

and Appellant Benn made four trips to Asheboro; and he and

Appellants Benn, Jeffries, and Poole made three to four trips to

9
Winston-Salem, each time to buy powder cocaine. Once they were

back in Greensboro, they would cook the powder at either

Appellant Benn’s, Appellant Jeffries’s, or Williams’s residence,

and it would be bagged for storage. Many times, Williams would

deliver the drugs to Greensboro crack houses and collect the

money and bring it to Appellant Benn. He explained that the

crack houses ran day and night, seven days a week.

Williams testified that around 2007-08, he went to

Atlanta three times to buy powder cocaine, and the first time,

he went with Appellants Benn, Jeffries, and Poole; a worker

named Helen Grier; and two other individuals. Their intention

was to bring back three kilograms of powder cocaine. Williams,

Appellants Benn, Jeffries, and others contributed money to make

this purchase, but they only ended up with one “good” kilogram.

J.A. 208. Thus, they returned to Atlanta, bought more powder

cocaine, sold it in Greensboro, and obtained the proper amount

to pay back those who had contributed money.

On one occasion in 2008, Williams did not make the

trip to Georgia, but Appellant Benn told him about it. During

that trip, law enforcement stopped the vehicle in which

Appellants Benn, Jeffries, and Poole; Grier; and Barry Shamel

were traveling. Williams explained,

They went to purchase 8 kilos of cocaine; and after
purchasing the 8 kilos of cocaine, . . . they was
followed by some police in pick-up trucks. It turned

10
 into a high-speed chase and Mr. Benn got distant
enough from the police. . . . Shamel jumped out with
the black duffel bag with the 8 kilos of cocaine in it
and went and buried them . . . [t]hen after that, the
police closed in on Mr. Benn and Mr. Jeffries and Miss
Grier, and they took Mr. Benn to jail for questioning.
. . . Poole got out [of the vehicle] a little bit
farther after [Shamel] got out[.]

J.A. 214-15. Grier testified that when Appellant Poole jumped

out of the vehicle after Shamel, he carried a backpack full of

materials used to cook crack. At Appellant Benn’s direction,

Williams wired $100 to him so that Shamel could get a hotel room

after he buried the drugs. Once everyone returned to

Greensboro, they took the eight kilograms of powder cocaine and

buried it near Appellant Benn’s residence. The next day,

Appellant Benn cooked the powder cocaine into crack cocaine.

Later in 2008, Appellants Benn and Jeffries, along

with a third man, made a trip to Texas to purchase two kilograms

of powder cocaine. Appellant Benn called Williams and told him

he had been stopped by the police, who took their money as soon

as they crossed into Texas. Major Wade Robinson of the City of

Orange Police Department in Texas performed a search of the

vehicle and found $50,000 in cash in a black bag. DEA Special

Agent Timothy Duriso testified that Appellant Jeffries claimed

the money was his, but he was unable to explain the source of

the cash. Williams had earlier testified that the money was

going to be used to purchase two kilograms of powder cocaine.

11
 In addition, GPD Detective Eric Goodykoontz testified

that on May 20, 2009, police stopped a vehicle driven by

Appellant Benn on English Road, near Phillips Avenue in

Greensboro. Appellant Benn was with Appellant Poole. Appellant

Poole was searched, and officers discovered scales and a glass

smoking device in his shirt pocket. Upon further searching,

officers discovered that Appellant Poole was hiding 1/2 ounce,

or 14 grams, of crack cocaine in his buttocks.

B.

On August 30, 2011, Appellants were charged in a

superseding indictment, as follows:

Count One - All Appellants conspired with Williams and
others to distribute 280 grams or more of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1)
(“Object One”), and to unlawfully possess 5 kilograms
or more of a mixture containing a detectable amount of
cocaine hydrochloride with the intent to make crack
cocaine (“Object Two”), all in violation of 21 U.S.C.
§§ 846, 841(b)(1)(A).

Count Two - Appellant Haith possessed a handgun and
rifle in furtherance of a federal drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i).

Count Three - Appellant Haith was a felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).

Count Four - Appellant Jeffries possessed with the
intent to distribute 11.5 grams of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

Count Five - Appellant Jeffries possessed a 9mm semi-
automatic handgun, a Smith and Wesson 10mm semi-
automatic handgun, and a 12 gauge “Street Sweeper”
shotgun in furtherance of the drug trafficking crime

12
 mentioned in Count Four, in violation of 18 U.S.C.
§ 924(c)(1)(a)(i) and (c)(1)(B)(ii).

Appellants proceeded to trial, with jury selection

beginning on February 13, 2012. The Government’s case-in-chief

began on February 14, 2012, and continued over the course of

nine days, to February 27, 2012. The Government rested, and

each Appellant moved for judgment of acquittal per Rule 29 of

the Federal Rules of Criminal Procedure. The district court

granted Appellant Haith’s motion to dismiss Object Two of Count

One (the second prong of the conspiracy count -- possessing

cocaine hydrochloride with the intent to manufacture crack

cocaine), but denied the other aspects of Haith’s motion and

denied in their entirety the motions of Appellants Benn,

Jeffries, and Poole. None of the Appellants presented any

evidence in their defense. On March 5, 2012, the jury found

Appellants guilty of the charges remaining against each of them,

as follows:

Count One, Object One: The jury found that Appellants
Benn, Jeffries, and Haith conspired to distribute 280
grams or more of crack cocaine, while finding that
Appellant Poole conspired to distribute more than 28
but less than 280 grams.

Count One, Object Two: The jury found that Appellant
Benn had conspired to possess five kilograms or more
of cocaine hydrochloride with the intent to
manufacture crack cocaine, while Jeffries possessed
500 grams but less than five kilograms of cocaine
hydrochloride, and Poole possessed less than 500 grams
of cocaine hydrochloride with the intent to
manufacture crack.

13
 Count Three: The jury found Appellant Haith guilty of
being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Count Four: The jury found Appellant Jeffries
possessed with the intent to distribute 11.5 grams of
crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B).

Count Five – The jury found that Appellant Jeffries
possessed a 9mm semi-automatic handgun, a Smith and
Wesson 10mm semi-automatic handgun, and a 12 gauge
“Street Sweeper” shotgun in furtherance of the drug
trafficking crime mentioned in Count Four, in
violation of 18 U.S.C. §§ 924(c)(1)(a)(i) and
(c)(1)(B)(ii). 2

The district court held separate sentencing hearings

for each defendant:

Appellant Benn – Benn’s base offense level was 38,
which is the level for offenses involving 8.4
kilograms or more of cocaine base. See United States
Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”)
§§ 2D1.1(a)(5), (c)(1) (2011). After enhancements for
possessing a firearm, maintaining a premises for the
purpose of making and distributing drugs, committing
the offense as a pattern of conduct used as his
livelihood, and being an organizer or leader of the
conspiracy, his offense level was 48, which was
reduced to 43 pursuant to Chapter 5, part A of the
Guidelines. With a criminal history category of III,
his Guidelines range was life in prison. The
statutory provision was 10 years to life. The
district court varied downward, and assigned a term of
imprisonment of 440 months.

2
The jury found that the “Street Sweeper” was a destructive
device pursuant to 18 U.S.C. § 924(c)(1)(B)(ii), but also that
Appellant Jeffries did not know the characteristics of the
Street Sweeper that caused it to be a “destructive device.”
J.A. 2012.

14
 Appellant Jeffries – Jeffries’s base offense level was
38, for an offense involving 8.4 kilograms or more of
cocaine base. See U.S.S.G. §§ 2D1.1(a)(5), (c)(1)
(2011). He received two enhancements, which he does
not dispute, plus one 3-level increase for being a
manager or supervisor (but not an organizer or leader)
of the conspiracy, which he disputes in this appeal.
See U.S.S.G. § 3B1.1(b) (2011). These adjustments
took his offense level to 45, which was reduced to 43
pursuant to Chapter 5, part A of the Sentencing
Guidelines. With a criminal history category of II,
his Guideline range was life in prison as to Count
One, and 60 months as to Count Five, to be served
consecutively. The district court varied downward and
imposed a sentence of 300 months on Count One; 240
months on Count Four, to be served concurrently; and
60 months on Count Five, to be served consecutively,
for a total of 360 months in prison.

Appellant Haith - Haith’s base offense level was 38,
for an offense involving 8.4 kilograms or more of
cocaine base. See U.S.S.G. §§ 2D1.1(a)(5), (c)(1)
(2011). He received a 2-level increase for
maintaining a premises for the purpose of
manufacturing and distributing drugs, and a 3-level
increase for being a manager or supervisor (but not an
organizer or leader) of the conspiracy. This brought
his offense level to 43. Haith was designated as a
career offender and armed career criminal. His
Guideline range as to Counts One and Three was life in
prison, and for Count Two, it was 60 months, to run
consecutively. The district court sentenced him to
downwardly variant 309-month concurrent sentences on
Counts One and Three, and a 60-month consecutive
sentence on Count Two, for a total of 369 months in
prison.

Appellant Poole - The district court sentenced
Appellant Poole to 114 months in prison. Poole is not
challenging his sentence in this appeal.

Appellants filed timely notices of appeal, and the

appeals were consolidated. We held oral argument on Friday,

April 11, 2014, in Charleston, South Carolina.

15
 II.

All Appellants challenge their conspiracy convictions

as unsupported by sufficient evidence; and Appellants Benn and

Jeffries contend that the testimony of Williams was “inherently

unreliable.” Appellants’ Br. 2. 3

A jury verdict must be sustained “if, viewing the

evidence in the light most favorable to the prosecution, the

verdict is supported by substantial evidence.” United States v.

Smith, 451 F.3d 209, 216 (4th Cir. 2006) (internal quotation

marks omitted). “Substantial evidence” is defined as “evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.” Id. (internal quotation marks omitted).

Reversal for insufficient evidence “is reserved for the rare

case ‘where the prosecution’s failure is clear.’” United States

v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (citing Burks v.

United States, 437 U.S. 1, 17 (1978)).

To support a conspiracy conviction, the jury must have

believed beyond a reasonable doubt that (1) there was an

agreement between the defendant and one or more persons to

possess with the intent to distribute cocaine base (Count One,

Object One), or to possess hydrochloride with the intent to

3
Appellants filed a joint opening brief in this case.

16
manufacture cocaine base (Count One, Object Two); (2) the

defendant knew of the conspiracy; and (3) the defendant

knowingly and voluntarily became part of the conspiracy. See

United States v. Williams, 632 F.3d 129, 135 (4th Cir. 2011).

After a conspiracy is shown to exist, “the evidence need only

establish a slight connection between the defendant and the

conspiracy to support conviction.” United States v. Kellam, 568

F.3d 125, 139 (4th Cir. 2009) (internal quotation marks

omitted). Indeed, “[e]vidence of a buy-sell transaction coupled

with a substantial quantity of drugs, would support a reasonable

inference that the parties were coconspirators,” as can

“evidence of continuing relationships and repeated transactions

. . ., especially when coupled with substantial quantities of

drugs.” United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008) (internal quotation marks omitted) (alteration omitted).

Having independently reviewed the record, we reject

each of the Appellants’ arguments on this point. We find

sufficient evidence from numerous witnesses that each Appellant

made an agreement with at least one of the others to commit the

charged crimes, that each Appellant knew of the conspiracy, and

that each Appellant knowingly and voluntarily became part of the

conspiracy.

In addition, to the extent Appellants Benn and

Jeffries suggest that Williams’s testimony obtained pursuant to

17
an immunity agreement is per se questionable, they are asking

this court to make a credibility determination on appeal, but

credibility determinations “are within the sole province of the

jury and are not susceptible to judicial review.” United States

v. Palacios, 677 F.3d 234, 248 (4th Cir. 2012) (internal

quotation marks omitted); see also United States v. Smith, 30

F.3d 568, 571-72 (4th Cir. 1994) (rejecting a similar claim that

the government’s evidence was “somehow tainted” because it came

from persons who were granted immunity and signed plea

agreements in exchange for substantial assistance).

For these reasons, we conclude that Appellants’

conspiracy convictions were supported by substantial evidence.

III.

Appellants Benn, Jeffries, and Haith challenge their

sentences for various reasons. We discuss each of Appellants’

arguments in turn.

A.

Appellant Benn

As set forth above, Appellant Benn’s base offense

level was 38, which is the level for offenses involving 8.4

kilograms or more of cocaine base. See U.S.S.G. §§ 2D1.1(a)(5),

(c)(1) (2011). Appellant Benn contends that, although the jury

found him guilty of conspiring to distribute more than 280 grams

of crack and possessing more than 5 kilograms of cocaine powder,

18
and the district court sentenced Appellant Benn based on more

than 8.4 (specifically, 21.46) kilograms of crack, “in all its

searches and seizures, authorities had confiscated only 91

verifiable grams of [crack cocaine], and not all of that could

clearly be attributed to the alleged conspiracy.” Appellants’

Br. 20.

The district court’s determination of drug quantities

for sentencing purposes is reviewed for clear error. See

Kellam, 568 F.3d at 147. At sentencing, the government must

prove drug quantity by a preponderance of the evidence. See id.

A district court “may impose a sentence based on a drug quantity

determination greater than that found by the jury so long as the

sentence does not exceed the statutory maximum of the convicted

offense and the district court’s calculation is supported by

sufficient evidence.” United States v. Young, 609 F.3d 348, 357

(4th Cir. 2010) (internal quotation marks omitted). “A

defendant’s Base Offense Level under the Guidelines is

determined by the amount of drugs reasonably foreseeable to him

within the scope of his unlawful agreement.” United States v.

Lamarr, 75 F.3d 964, 972 (4th Cir. 1996) (internal quotation

marks omitted).

The trial evidence and the record provide ample

support for the district court’s drug quantity finding of 21.46

kilograms. The court first considered the trips made to

19
Atlanta, Texas, and other locations in North Carolina and used

the alleged quantities of powder cocaine obtained on those trips

and converted them to the crack equivalent, since the evidence

at trial suggested the powder was to be used to make crack. The

court concluded, “from the Atlanta trips of 11 kilos and then 6

kilos from Winston-Salem, five from Asheboro, that should be a

total of 22 kilos. . . . Adding [the 2 kilos sought on the

Texas trip], I have a total of 24 kilos of powder cocaine.”

J.A. 2119. The court then explained, “[t]he evidence was

consistent throughout the trial that the only purpose for the

powder cocaine was to convert it into crack cocaine for the

purposes of resale, so based on the conversion ratio of .894,

that would convert . . . [to] 21.46 kilos of crack cocaine.”

Id.

Alternatively, the court explained,

[I]f you look at the sales of cocaine from the various
houses, a conservative estimate, . . . is, 10 grams a
day for each house, and the testimony was the houses
ran 24 hours a day, seven days a week. That would be
3.65 kilos over a three year period of 2005 to 2007.

Also, the testimony that I find credible was, that
[Jacqueline Adams, a worker] also collected packages
from Mr. Benn and five gram packs, 1 gram in each
broken out pack, four in a bundle, so 5 grams times
four is 20 grams. That would be 1.6 kilos.

Further, according to Mr. [Ronald] Duff’s testimony,
and I find his testimony credible, 15 grams a day from
the Brag[g Street] house, would come to 3.6 kilos for
the eight to nine month period that he testified to.

20
 That alone, is 8.85 kilos of crack cocaine, which is
above the 8.4 kilograms of record level 38 . . . .

In any event, Ms. Grier also testified to additional
sales, which in a good week would be 40 grams, which
it would be an additional up to 2 kilos. Ms. Mumford
also had sales for three and a half years, even if she
is selling 1 gram. As the Government indicated, that
would be 1.2 kilos. All of that would be well above
the 8.4 kilograms, so on either way of looking at the
evidence, a minimum of 8.4 kilograms of crack cocaine
or cocaine base is attributable, I believe, to Mr.
Benn in this case.

J.A. 2120-21.

The district court did not clearly err in determining

that these amounts were “reasonably foreseeable to [Appellant

Benn] within the scope of” the conspiracy. Lamarr, 75 F.3d at

972. In any event, the district court varied downward from the

life sentence and sentenced Appellant Benn to 440 months in

prison. For these reasons, Appellant Benn’s drug quantity

argument fails.

B.

Appellant Jeffries

Appellant Jeffries raises challenges both to the

quantity of drugs attributed to him for sentencing purposes, and

to the sentencing enhancement he received for being a

manager/supervisor of the conspiracy.

21
 1.

Drug Quantities

Appellant Jeffries contends that the district court

assigned drug quantities to him “that had been attributed to Mr.

Benn and his independent operations” and “[t]he totality of the

evidence does not show a direct connection between Mr. Jeffries

and the drug activities of Mr. Benn at the time Jeffries was

seen.” Appellants’ Br. 41, 42. He also contends the district

court erred in assigning the $50,000 that Appellant Jeffries

claimed to be his to a drug quantity because “[t]he cash itself

was not determined to be related to any particular drug

activity.” Id. at 41.

The district court assigned to Appellant Jeffries 19

kilograms of powder cocaine, based on three trips to Atlanta (11

kilograms total), three trips to Winston-Salem (6 kilograms

total), and a trip to Texas ($50,000 cash converted to 2

kilograms). Based on the conversion rate of .894, this equates

to 16.9 kilograms of crack cocaine. Therefore, Appellant

Jeffries’s base offense level was 38, for an offense involving

8.4 kilograms or more of cocaine base. See U.S.S.G.

§§ 2D1.1(a)(5), (c)(1) (2011).

The information upon which the district court based

the drug quantity calculation with respect to Appellant Jeffries

came from the testimony of co-conspirators at trial. This was

22
proper. See United States v. Slade, 631 F.3d 185, 188 (4th Cir.

2011) (“[I]t is within the discretion of the district court to

credit the testimony of [ ] witnesses who discussed [the

defendant’s] involvement in the drug trade.”). In addition, the

district court found that Appellant Jeffries not only knew that

the trips to Georgia, Winston-Salem, and Texas were to buy

powder cocaine to cook into crack, but that Appellant Jeffries

also contributed money to at least some of these buys. Further,

“[w]here police seize cash . . . from a defendant, the cash can

be converted to a quantity of drugs consistent with the normal

selling price for the drugs.” United States v. McGee, 736 F.3d

263, 271 (4th Cir. 2013).

Having reviewed the record, we conclude the district

court’s findings were not clearly erroneous. Thus, the drug

quantity assigned to Jeffries was proper. See Lamarr, 75 F.3d

at 972 (base offense level in a drug conspiracy case is

determined by the amount of drugs “reasonably foreseeable . . .

within the scope of [the] unlawful agreement”).

2.

Sentencing Enhancement

The United States Sentencing Guidelines allow for a

three-level upward adjustment to a defendant’s offense level if

“the defendant was a manager or supervisor (but not an organizer

or leader) and the criminal activity involved five or more

23
participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b)

(2011). As we have explained,

[t]he adjustment is warranted when a defendant was a
manager or supervisor “of one or more other
participants.” [U.S.S.G. § 3B1.1(b)] cmt. n.2.
Therefore, “an adjustment under § 3B1.1 is proper
‘only if it was demonstrated that the defendant was an
organizer, leader, manager or supervisor of people.’”
United States v. Cameron, 573 F.3d 179, 185 (4th Cir.
2009) (quoting United States v. Sayles, 296 F.3d 219,
226 (4th Cir. 2002)) (emphasis in original)
(alterations omitted). The burden is on the
government to prove by a preponderance of the evidence
that the sentencing enhancement should be applied.

United States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013)

(footnote omitted). Comment 4 to U.S.S.G. § 3B1.1 provides

seven factors to consider in making the determination as to

whether the enhancement applies to a particular defendant: 1)

the exercise of decision making authority, 2) the nature of

participation in the commission of the offense, 3) the

recruitment of accomplices, 4) the claimed right to a larger

share of the fruits of the crime, 5) the degree of participation

in planning or organizing the offense, 6) the nature and scope

of the illegal activity, and 7) the degree of control and

authority exercised over others.

Appellant Jeffries contends that this enhancement was

improperly applied to him because “the record evidence is

insufficient to show that he actually ‘managed or supervised’

persons involved in the conspiracy.” Appellants’ Br. 38. In

24
reviewing this claim, “[i]f the issue turns primarily on a

factual determination, [we] should apply the ‘clearly erroneous’

standard.” Steffen, 741 F.3d at 414. But, “if the issue turns

primarily on the legal interpretation of a guideline term, the

standard moves closer to de novo review.” Id. (alterations

omitted). However, “[w]e consistently have held that a district

court’s determination that a defendant held a leadership role in

criminal activity is essentially factual and, therefore, is

reviewed on appeal for clear error.” Id. (internal quotation

marks omitted). At sentencing, the Government has the burden of

proving that the enhancement applies by a preponderance of the

evidence. See id.

In Slade, we reversed the district court’s application

of the enhancement due to the “absence of any evidence” that the

defendant managed or supervised at least one other participant

in the offense. 631 F.3d at 191. Although the evidence showed

that Slade supplied drugs to other co-conspirators, co-

conspirators sold drugs for Slade, and a co-conspirator drove

Slade to different places to deliver drugs, there was no

evidence that Slade “actively exercised some authority over

other participants in the operation or actively managed its

activities.” Id. at 190.

In contrast, we upheld the enhancement in Steffen,

where the defendant “made decisions that reflected his

25
management or supervision of the criminal activities of at least

one other person,” i.e., using his position as a state highway

patrolman “to prevent any other law enforcement agency from

stopping” a co-conspirator’s vehicle containing drugs, and

transferring his electric bill to the same co-conspirator’s name

in order to avoid being implicated in the conspiracy and to

deflect blame to the co-conspirator. 741 F.3d at 416; see also

United States v. Llamas, 599 F.3d 381, 389–90 (4th Cir. 2010)

(affirming U.S.S.G. § 3B1.1(b) enhancement where the defendant

“exercised supervisory responsibility over” the activities of a

call center in furtherance of a fraud scheme by, inter alia,

enforcing the center’s rules, punishing non-compliant operators,

and coordinating the operators’ activities); Kellam, 568 F.3d at

147–48 (affirming U.S.S.G. § 3B1.1(b) enhancement where the

defendant controlled the drug buys of co-conspirators and

directed the terms of payment); Bartley, 230 F.3d at 673–74

(affirming U.S.S.G. § 3B1.1(b) enhancement where the defendant

directed the activities of street-level drug dealers and advised

them on drug sales techniques, set prices and payment terms, and

directed the mailing and transport of drugs); United States v.

Brooks, 957 F.2d 1138, 1152 (4th Cir. 1992) (affirming USSG

§ 3B1.1(b) enhancement where the defendant, inter alia, paid

employees of the drug operation and “effectively ran the [drug]

operation while her husband was ill”).

26
 In the instant matter, there were several facts

adduced at trial and relied upon by the district court that

support the enhancement. The court first found that the

conspiracy involved five or more participants, naming Williams,

Adams, and Appellants Jeffries, Haith, and Benn. It also

concluded the conspiracy was extensive, covering a period of

four years, multiple trips across state lines, and distribution

at around a dozen crack houses.

As to Appellant Jeffries specifically, Mumford

testified that after Williams was in jail, Jeffries “would come

around and start doing what [Williams] was doing, [which was]

[m]aking sure the rent got paid or bringing us the drugs or

receiving the money after we sell the drugs.” J.A. 1458. She

also testified that Appellant Jeffries would sometimes “run a

house” and that she “sold sometimes for” him. Id. In addition,

Appellant Jeffries “straightened [] out” a bad deal for Ronald

Duff, when he attempted to buy drugs at a house Appellant

Jeffries was allegedly running, and Duff never had a problem

there again. Id. at 826-27. The district court further found

that Appellant Jeffries was present on all of the trips to

Atlanta, and that on one trip, he waited at the hotel for

Appellant Benn, Appellant Poole, and Shamel after Poole and

Shamel jumped from the vehicle to flee law enforcement. It also

found, “Jeffries took over [Williams’s] role for a period of

27
time . . . as the second in command to help Mr. Benn run his

enterprise. So, in that capacity, he was managing –- helping to

manage the delivery of cocaine to the crack houses and the

collection of money.” J.A. 2285.

This case is more akin to Steffen than it is to Slade;

the evidence demonstrates that Appellant Jeffries stepped in as

second in command in the Bundy Boys hierarchy, ran a crack house

where he had the power to “fix” bad deals, and directed at least

one worker in the conspiracy to sell drugs. Based on this

evidence, the district court did not err in applying the

sentencing enhancement.

C.

Appellants Benn, Jeffries, and Haith

Alleyne v. United States

In supplemental and reply briefs, Appellants Benn,

Jeffries, and Haith contend that the drug quantities attributed

to them in the PSR and found by the district court were “not

submitted to a jury and . . . proven beyond a reasonable doubt,”

in contravention of Alleyne v. United States, 133 S. Ct. 2151,

2155 (2013). Appellant Haith’s Supp. Br. 3; see also Appellants

Benn and Jeffries’s Rep. Br. 2, 6. Because this issue was not

raised below, we review it for plain error. See United States

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

133 S. Ct. 1121, 1126 (2013); see also Fed. R. Crim. P. 52(b)

28
(“A plain error that affects substantial rights may be

considered even though it was not brought to the court’s

attention.”). Rule 52(b) authorizes an appeals court to correct

a forfeited error only if “(1) there is an error, (2) the error

is plain, and (3) the error affects substantial rights.”

Henderson, 133 S. Ct. at 1126 (internal quotation marks and

alteration omitted). An error is plain “even if the trial

judge’s decision was plainly correct at the time when it was

made but subsequently becomes incorrect based on a change in

law.” Id. at 1127 (emphasis in original).

Apprendi v. New Jersey held, “[o]ther than the fact of

a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466,

490 (2000). Alleyne went a step further, declaring,

“[m]andatory minimum sentences increase the penalty for a crime.

It follows, then, that any fact that increases the mandatory

minimum is an ‘element’ that must be submitted to the jury.”

133 S. Ct. at 2155.

Alleyne has no application to Appellants’ sentences in

this case. The district court’s drug quantity determinations at

sentencing did not increase Appellants’ statutory mandatory

minimum sentences, but rather, were used to determine their

advisory Guidelines ranges (from which, in any event, the

29
district court varied downward). Alleyne itself recognized that

“broad sentencing discretion, informed by judicial factfinding,

does not violate the Sixth Amendment.” Id. at 2163; see also

id. (explaining that its decision is “wholly consistent with the

broad discretion of judges to select a sentence within the range

authorized by law”); United States v. Ramirez-Negron, --- F.3d

----, 2014 WL 1856762 (1st Cir. May 9, 2014) (“[F]actual

findings made for purposes of applying the Guidelines, which

influence the sentencing judge’s discretion in imposing an

advisory Guidelines sentence and do not result in imposition of

a mandatory minimum sentence, do not violate the rule in

Alleyne.”); United States v. Smith, --- F.3d ----, 2014 WL

1856679 (3d Cir. May 9, 2014) (“Alleyne did not curtail a

sentencing court’s ability to find facts relevant in selecting a

sentence within the prescribed statutory range.”); United States

v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014) (finding Alleyne

had no application to fact-finding resulting in an increased

Guidelines sentence, explaining, “Alleyne dealt with judge-found

facts that raised the mandatory minimum sentence under a

statute, not judge-found facts that trigger an increased

guidelines range”); United States v. Claybrooks, 729 F.3d 699,

708 (7th Cir. 2013) (citing Alleyne and explaining, “[a]lthough

judicially determined facts are no longer relevant to deciding

the applicable mandatory minimum, a district court should

30
continue to make whatever factual findings are needed to

calculate a defendant’s advisory Guidelines range”); United

States v. Booker, 543 U.S. 220, 233 (2005) (“[W]hen a trial

judge exercises his discretion to select a specific sentence

within a defined range, the defendant has no right to a jury

determination of the facts that the judge deems relevant.”). 4

Thus there is no Alleyne error in the district court’s

determination of Appellants’ drug quantities at sentencing.

D.

Appellant Haith

United States v. Davis

Appellant Haith also challenges his career offender

and armed career criminal designations as violative of this

court’s decision in United States v. Davis, 720 F.3d 215 (4th

Cir. 2013).

1.

Davis held, “a consolidated sentence under North

Carolina law is a single sentence for purposes of the career

offender enhancement.” 720 F.3d at 216. Indeed, two of

4
See also United States v. Holder, No. 13-4269, 2014 WL
57798 (4th Cir. Jan. 8, 2014) (“[A]lthough judicially determined
facts are no longer relevant after Alleyne to deciding the
applicable mandatory minimum, the factual findings needed to
calculate a defendant’s advisory Guidelines range are still
within the district court’s province.”).

31
Appellant Haith’s previous sentences were consolidated for

judgment in North Carolina, and the district court counted them

separately in determining whether Haith was a career offender.

Because this issue was not raised at sentencing, we

review it for plain error. See Henderson, 133 S. Ct. at 1127.

Even assuming plain error existed here, the error did not affect

Haith’s substantial rights. Haith was designated as a career

offender under U.S.S.G. 4B1.1, which provides:

(a) A defendant is a career offender if (1) the
defendant was at least eighteen years old at the time
the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). The PSR, which the district court adopted,

listed three previous offenses as satisfying subsection (3)

above. They were 97CRS54403 (felony common law robbery);

97CRS46969 (felony indecent liberties with a child); and

97CRS46970 (felony indecent liberties with a child). The latter

two were consolidated for judgment. Appellant Haith is correct

that, after Davis, the consolidated judgment would count as one

sentence for purposes of the career offender enhancement. But

even if the two offenses were consolidated, Appellant Haith

would still have “at least two” prior felony convictions of

32
crimes of violence, and would have still satisfied the career

offender requirements. 5

2.

Appellant Haith also challenges his designation as an

armed career criminal, that is, a defendant convicted of an

offense under 18 U.S.C. § 922(g) who has “three previous

convictions by any court [for a crime punishable by imprisonment

for a term exceeding one year] for a violent felony or a serious

drug offense, or both, committed on occasions different from one

another.” 18 U.S.C. § 924(e); U.S.S.G. § 4B1.4(a). His

argument is based on Davis -- that is, his consolidated judgment

should count as only one offense. Davis, however, does not

apply to the armed career criminal context.

5
In his supplemental brief, Appellant Haith also argues
that the North Carolina felony indecent liberties offenses were
not crimes of violence. This is an argument that could have
been raised in Appellant Haith’s opening brief but was not;
therefore, it is waived. See United States v. Hudson, 673 F.3d
263, 268 (4th Cir. 2012); United States v. Leeson, 453 F.3d 631,
638 n.4 (4th Cir. 2006) (“Because Leeson did not present his
argument based upon Crawford in the argument section of his
opening brief, and Crawford was readily available at the time
Leeson filed his opening brief, Leeson’s argument based upon
Crawford is waived.”); see also Fed. R. App. P. 28(a) (“The
appellant’s brief must contain . . . the argument, which must
contain . . . appellant’s contentions and the reasons for
them[.]”). Furthermore, when Appellant Haith requested
supplemental briefing, he did so only to address Alleyne and
Davis. See United States v. Benn, No. 12-4522, ECF No. 95 (4th
Cir. filed June 26, 2013).

33
 3.

Finally, even assuming error in both the career

offender and armed career criminal context, Appellant Haith’s

offense level would not change because it was already at level

43 before the proposed enhancements about which Appellant Haith

complains, and the Guidelines state, “[a]n offense level of more

than 43 is to be treated as an offense level of 43.” U.S.S.G.

Ch. 5, Pt. A n.2 (emphasis supplied). The Guidelines range for

an offense level of 43, regardless of the criminal history

points, is life in prison. Thus, any potential error here would

not affect Appellant Haith’s substantial rights. See Henderson,

133 S. Ct. at 1126.

IV.

Lastly, we consider arguments by Appellants Jeffries

and Haith that the expert witness used by the Government, GPD

Corporal Jon Marsh, was erroneously admitted and erroneously

qualified as an impartial expert witness.

Appellants claim that Corporal Marsh’s testimony “was

prejudicial to the defendant in that it allowed ‘bolstering’ of

testimony and falsely supported evidence of a single

conspiracy.” Appellants’ Br. 43. They also point out that

Corporal Marsh came from “the same investigative body that was

involved in the prosecution of [Appellants]” and thus, the court

gave “credence that the Greensboro Police Department was

34
employing highly qualified officers and experts in this

investigation, even though Mr. Marsh was not involved in any

part of the particular investigation.” Id. at 44.

We review a district court’s admission of expert

witness testimony for abuse of discretion. See United States v.

Hopkins, 310 F.3d 145, 151 (4th Cir. 2002). A court abuses its

discretion “if its decision is guided by erroneous legal

principles or rests upon a clearly erroneous factual finding.”

United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).

A.

At trial, Corporal Marsh testified with regard to drug

distribution and firearms. After opining as to his education

and extensive training with regard to narcotics investigations, 6

Corporal Marsh testified about how crack cocaine is normally

6
Corporal Marsh was an eighteen-year veteran with the GPD,
having worked thirteen years as a detective in vice and
narcotics. He also worked six months on a highway interdiction
team and two years in the tactical division working street
narcotics. He was a sworn task force officer with the DEA for
six years. During his eighteen year career, Corporal Marsh had
worked 6,000-8,000 narcotics cases, approximately half of which
involved cocaine. He participated in at least 300-400 search
warrants (conservatively) and of those, about sixty percent
involved cocaine. Corporal Marsh graduated from University of
North Carolina at Greensboro with a bachelor’s degree in
political science. He attended the Greensboro Police Academy
where he received 40 hours of training in narcotics and since
then continued his training, having received over 680 additional
hours of training related to narcotics investigations. He
further received training through the DEA when he became a task
force officer.

35
bagged up, how it is cut, the materials used to cut and package

it, how much it is usually worth, and how crack houses normally

operate. Pertinent to Appellants Jeffries and Haith, Corporal

Marsh testified about “why . . . crack dealers have firearms.”

J.A. 1389. Corporal Marsh explained,

Most of the time, in my experience, what I have seen
is [crack dealers have firearms for] protection for
themselves and for the product that they are selling
and their money . . . . [They also have firearms] a
lot as boasting, trying to basically ward off getting
rob[bed]. I’ve heard -- you know -- if it looks scary
or if they feel -- drug dealers think that they can
show a gun or intimidate people who are buying from
them who may be [an]other [seller]. [T]hey want to
ward off the fact of an attempted robbery, boast about
it, show them I got a gun. I am not going to be taken
like that. I am going to protect myself at any means.

Id. at 1390-91. Corporal Marsh also testified about the types

of firearms he typically sees when crack dealers are trying to

protect themselves, i.e., handguns, semi-automatic handguns,

other concealable weapons, and sometimes shotguns; and the

places he typically finds them, i.e., in a closet, on the table,

on the mantel, next to a door, underneath a couch.

Appellant Jeffries filed a motion for expert

credentials on February 7, 2012, one week before trial. The

Government filed its expert witness notification for Corporal

Marsh on February 16, 2012, three days after jury selection and

two days after trial testimony began. Even then, Appellant

Jeffries claims he only received a “curriculum vitae, as well as

36
hand-written notes from Detective Marsh compiling his training

over the years.” Appellants’ Br. 43.

On February 20, 2012, Appellant Haith filed a motion

to exclude Corporal Marsh, claiming that the evidence sought to

be presented was not reliable (under Rule of Evidence 702), and

was more prejudicial than probative (under Rule of Evidence

403). The motion was made only on behalf of Appellant Haith,

and did not mention the timeliness of the notice of the expert

testimony of Corporal Marsh; however, on the morning of February

23, 2012, Appellant Jeffries’s counsel addressed the timeliness

of the motion, stating, “I . . . object to the timeliness of the

[notice] for the record. The notice was given on [February]

16th after motions had been filed requesting reports from expert

witnesses, which were filed timely before the beginning of

trial.” J.A. 1371.

The district court ruled that the testimony would be

allowed “with proper foundation laid for each aspect of

testimony.” J.A. 17. As to the timeliness argument, the

district court explained, “I think folks have had time to

certainly be prepared for it. So it is not coming as any shock

to anybody. It is also the kind of testimony that, for those of

us who deal with it on a daily basis in connection with these

types of cases, is certainly anticipated; that is, there is very

37
little of this that is new or novel to anybody.” Id. at 1375-

76.

B.

We are troubled about the way in which the expert

testimony of Corporal Marsh was introduced and utilized by the

Government. At oral argument, the Government stated that it

certified Corporal Marsh as an expert because it wanted to “err

on the side of caution,” even though Corporal Marsh’s testimony

“wasn’t the kind of information that we typically consider an

expert opinion.” Oral Argument at 50:40-51:00, United States v.

Benn, No. 12-4255 (April 11, 2014), available at

http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-

arguments. The Government reiterated that in the Middle

District of North Carolina, “we don’t typically file the notice

of expert opinion [when police officers testify about the

connection between guns and drugs.] We ordinarily bring it in

as lay opinion testimony.” Id. at 52:20-28. Despite this

assertion, in this case, the Government not only sought to

certify Corporal Marsh as an expert, but did so three days after

trial began, and more than a week after Appellants requested

expert disclosures. This is far from “err[ing] on the side of

caution.” In fact, doing so gives the impression of bestowing

the court’s imprimatur on what -- the Government now argues --

is essentially lay witness testimony.

38
 Furthermore, this and other courts have appropriately

excluded expert witness testimony based on untimely notice.

See, e.g., United States v. Harris, 995 F.2d 532, 536 n.4 (4th

Cir. 1993) (“[D]efense counsel’s advice and presentation to the

court on the first day of trial hardly gave the government

adequate notice of his intention to use an expert witness.”);

United States v. Curry, 977 F.2d 1042, 1052 (7th Cir. 1992)

(notice of the proposed proffer of expert testimony given four

days before trial was prejudicial to the government and would

have justified its exclusion); United States v. Dowling, 855

F.2d 114, 118 (3d Cir. 1988) (notice of the proposed proffer of

expert testimony given five days before trial was considered

prejudicial to the government), aff’d on other grounds, 493 U.S.

342, 354 (1990); see also Wilkins v. Montgomery, --- F.3d ----,

2014 WL 1759083 (4th Cir. May 5, 2014) (in a civil case, finding

no abuse of discretion in district court’s exclusion of expert

testimony where disclosure was made after the agreed-upon expert

disclosure date, after discovery was closed, after Appellee

filed a motion for summary judgment).

Although we have misgivings about the Government’s

actions regarding this matter, we find no abuse of discretion on

the part of the district court. For one thing, it does not

appear that Appellants were prejudiced by the late notice. See

United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir.

39
1997) (holding that a defendant “must demonstrate prejudice to

substantial rights to justify reversal for violations of

discovery rules”). 7 In the week between the Government’s

disclosure and Corporal Marsh’s testimony, Appellants did not

ask for a continuance to seek and submit their own expert, and

both Appellant Jeffries’s and Appellant Haith’s attorneys cross-

examined Corporal Marsh at trial. During cross examination,

defense counsel firmly developed Appellants’ position that

Corporal Marsh’s testimony “ha[d] no connection . . .

whatsoever” to the specifics of the case at hand. J.A. 1402.

Contrast United States v. Garcia, --- F.3d ----, 2014 WL

1924857, at *7-8 (4th Cir. May 15, 2014) (holding that the

district court abused its discretion in allowing law enforcement

expert testimony where “there were inadequate safeguards to

protect the jury from conflating [the expert’s] testimony as an

expert and fact witness” and the expert “used her personal

knowledge of the investigation to form (not simply to ‘confirm’)

her ‘expert’ interpretations.”).

Further, Corporal Marsh’s testimony did not, in fact,

contravene the rules of evidence. Fed. R. Evid. 702 provides,

7
See also United States v. Richardson, 128 F. App’x 305,
309 (4th Cir. 2005) (even when a defendant is given late notice
of an expert witness, he is not entitled to relief unless he
“suffered . . . prejudice as a result of th[e] [discovery]
violation”).

40
 A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;

(b) the testimony is based on sufficient facts or
data;

(c) the testimony is the product of reliable
principles and methods; and

(d) the expert has reliably applied the principles and
methods to the facts of the case.

Fed. R. Evid. 702. Under Rule 702, “the trial judge must ensure

that any and all [expert] testimony or evidence admitted is not

only relevant but reliable.” Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Based on

Corporal Marsh’s qualifications and credentials, it was not an

abuse of discretion for the district court to allow his

testimony to aid the jury in understanding the complex inner

workings of drug conspiracies and the connection between guns

and drugs.

Similar testimony has been upheld as appropriate by

this court. See, e.g., United States v. Galloway, --- F.3d

----, 2014 WL 1424939, at *6 (4th Cir. Apr. 15, 2014) (under

plain error review, the district court did not err in qualifying

police officers as expert witnesses with regard to interpreting

intercepted drug-related phone conversations); United States v.

41
Baptiste, 596 F.3d 214, 223 (4th Cir. 2010) (on plain error

review, expert testifying about his approach to decoding

language used by drug dealers did not contravene Rule 702);

Hopkins, 310 F.3d at 151 (expert who explained how the materials

found in Hopkins’s car led him to believe, based on his

experience and training, that Hopkins was involved in drug

distribution was properly admitted under Rule 702); United

States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994) (holding

district court properly admitted expert testimony regarding

tools of drug trade); United States v. Brewer, 1 F.3d 1430,

1435-36 (4th Cir. 1993) (expert testimony concerning the

significance of extensive phone traffic between Brewer and

members of the alleged drug ring did not contravene Rule 702).

Likewise, courts -- including our own -- have also

held such expert testimony admissible in the context of drugs

and firearms. See, e.g., Hopkins, 310 F.3d at 151 (affirming

admission of expert testimony that a “small caliber weapon,”

inter alia, led an officer to conclude that Hopkins was a drug

dealer); see also United States v. Anchrum, 590 F.3d 795, 804

(9th Cir. 2009) (allowing law enforcement agent to testify as

expert and opine on the “various reasons a hypothetical drug

dealer would possess a firearm”); United States v. Blount, 502

F.3d 674, 679-80 (7th Cir. 2007) (district court did not err in

42
allowing police officer to offer expert opinion that gun was

used to protect defendant’s drug business).

Further, we cannot say that the district court’s

admission of Corporal Marsh’s testimony was “guided by erroneous

legal principles” with respect to Federal Rule of Evidence 403.

Johnson, 617 F.3d at 292. As explained above, the probative

value of the testimony was high, and the prejudice to Appellants

was low -- especially considering Corporal Marsh admitted he was

not speaking directly about the Bundy Boys conspiracy, and there

was ample evidence otherwise supporting the jury verdicts

against Appellants Jeffries and Haith. For these reasons, the

district court did not abuse its discretion in allowing Corporal

Marsh to testify as an expert. 8

V.

For the foregoing reasons, as to all Appellants, the

judgment of the district court is

AFFIRMED.

8
Nonetheless, we caution the Government against the have-
their-cake-and-eat-it-too attitude exhibited in this case
regarding law enforcement testimony. The Government either
views it as expert testimony or not. If the former, they need
to behave accordingly and provide timely notice.

43