NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30159
Plaintiff-Appellee, D.C. No.
3:14-cr-00096-RRB-2
v.
CHARLIE B. LEWIS III, AKA LC, AKA MEMORANDUM*
Little Chuck,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted June 12, 2018**
Anchorage Old Federal Building, Alaska
Before: THOMAS, Chief Judge, and CALLAHAN and BEA, Circuit Judges.
Appellant Charles B. Lewis III appeals his jury trial convictions for
conspiracy to distribute a controlled substance (21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(B), (C)) and for distribution of a controlled substance (21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 841(a)(1), (b)(1)(B)). Lewis claims that much of the government witnesses’ trial
testimony was improperly admitted under Federal Rule of Evidence 701(b).
Because Lewis did not object to the testimony at trial, we review the district
court’s decision to admit the testimony for plain error, United States v. Olano, 507
U.S. 725, 731 (1993), and we affirm.
1. The government’s case included the testimony of several witnesses.
Special Agent Thomas King of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, Officer Seth McMillan of the Anchorage Police Department, Lewis’
co-conspirator Michael Ewing, and a confidential informant (“CI”) testified as lay
witnesses to their interpretations of statements made in recorded conversations
involving Lewis. As is relevant to this appeal, the witnesses explained drug jargon
and interpreted ambiguous statements. For example, the CI interpreted Lewis’
recorded statement that “I want to keep this shit consistent” as meaning that Lewis
“wanted to keep [methamphetamine] at all times and he didn’t want to run out.”
King interpreted Lewis’ statement that “that’s what I fuck with now” to mean
“[t]hat’s what he’s selling now . . . . methamphetamine.” And McMillan testified
that “What can I get for 2” meant “what kind of drugs can I get, can I get drugs for
two, $200.” Lewis argues that the district court plainly erred in admitting these
and other opinion statements under Federal Rule of Evidence 701(b) because they
were not helpful to the jury.
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2. We review the district court’s evidentiary rulings here for plain error. Id.
Plain error means an error that is “plain,” “affect[s] substantial rights,” and
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 732 (internal quotation marks omitted).
“[Federal Rule of Evidence] 701 allows a lay witness to offer opinions that
are (a) ‘rationally based on the witness’s perception,’ (b) ‘helpful’ to the jury, and
(c) ‘not based on scientific, technical, or other specialized knowledge within the
scope of’ expert testimony.” United States v. Gadson, 763 F.3d 1189, 1206 (9th
Cir. 2014) (quoting Fed. R. Evid. 701). The district court did not err in admitting
the challenged testimony under Rule 701(b) because the government witnesses’
testimony was “helpful” to the jury: it involved interpreting ambiguous statements
and translating drug jargon that assisted the jury in understanding Lewis’
involvement in distributing and conspiring to distribute methamphetamine and
crack cocaine. See id. at 1206–07, 1209, 1212–13.
3. Even if the district court had erred, any error was not plain error because
Lewis was not prejudiced by admission of the challenged testimony. See United
States v. Alghazouli, 517 F.3d 1179, 1190 (9th Cir. 2008). First, Lewis offers no
innocent alternative explanations for the challenged statements. Second, even if
King and the CI—percipient witnesses to recorded conversations—had not been
allowed to interpret the recorded statements, they could have testified to the
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conversations themselves. Third, even setting aside all of the recorded
conversation testimony, a jury would likely have convicted Lewis based on the
other evidence presented at trial. Three witnesses—King, Ewing, and the CI—
testified that the CI purchased seven grams of methamphetamine from Lewis and
Ewing and paid Lewis for the drugs. That same evidence established that Ewing
and Lewis were co-conspirators in their distribution of methamphetamine. Finally,
the government presented testimony related to the physical evidence found at
Lewis’ apartment during execution of a search warrant—e.g., cocaine and drug
paraphernalia for “cooking” and distributing cocaine. In sum, irrespective of the
recorded conversations testimony, the government presented overwhelming
evidence of Lewis’ guilt on both counts. Any error by the district court in
admitting the challenged testimony therefore did not affect Lewis’ substantial
rights.
AFFIRMED.
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