United States v. Emmanuel

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 21, 2009
No. 07-10378 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 02-80192-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHERVIN EMMANUEL,
a.k.a. Black Boy,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(April 21, 2009)

Before TJOFLAT and CARNES, Circuit Judges, and THRASH,* District Judge.

_______________________________
*Honorable Thomas W. Thrash, United States District Judge for the Northern District of
Georgia, sitting by designation.
THRASH, District Judge:

This is a drug case. The Appellant Shervin Emmanuel appeals his

conviction for various drug trafficking offenses. For the reasons discussed below,

we AFFIRM.

I. Background

This case arises out of the investigation and prosecution of the Austin

Knowles drug trafficking organization in the Bahamas. The Drug Enforcement

Unit of the Royal Bahamas Police Force started investigating the organization in

the early 1990s. (R. Vol. 3, at 294.) From the beginning, the Drug Enforcement

Unit suspected that Emmanuel was a member of the organization, but did not

initiate a full investigation of him until 2001. (Id.) In October 2001, Wayne

Woodside, a sergeant in the Drug Enforcement Unit, sought permission from the

Bahamian authorities to wiretap the telephones of Emmanuel and Austin Knowles,

the head of the organization. (Id. at 300-06.) Sergeant Woodside made a written

request for the wiretap to the Commander of the Drug Enforcement Unit. (Id. at

295.) The Commander reviewed Sergeant Woodside’s request and forwarded it to

the Assistant Commissioner of Crime, who also reviewed it and forwarded it to the

Commissioner of Police. (Id.) The Commissioner of Police consulted with the

Attorney General of the Bahamas and after the consultation, the Commissioner

2
approved the wiretap request for a period of 14 days. (Id. at 296.)

The Commissioner re-authorized the wiretap on the telephones of

Emmanuel and Austin Knowles from October 2001 to November 2002. (Id.)

During this time, the officers in the wire section of the Drug Enforcement Unit

conducted the wiretap from a secure wire room. (Id.) Only officers in the wire

section had access to the wire room and access to the room was controlled with a

key available only to Sergeant Woodside and a few other high level advisors. (Id.)

Other officers in the Drug Enforcement Unit were allowed in the secure wire

room, but only with permission of the Commander. (Id. at 296-97.)

When the Drug Enforcement Unit has information relevant to another

jurisdiction, its practice is to share the information with that jurisdiction. (Id. at

309.) And so, in March or April 2002, Sergeant Woodside told agents from the

United States Drug Enforcement Administration that the wiretaps had revealed

information relevant to the United States. (Id. at 298.) Sergeant Woodside

requested permission to invite the agents to the wire room and the Commander

granted his request. (Id. at 297.) The DEA agents helped the Drug Enforcement

Unit prepare transcripts of intercepted conversations, but were not otherwise

involved in the wiretap interceptions. (Id. at 312-14.) The Bahamian

investigation remained an “independent investigation of these individuals for

3
violation of Bahamian law.” (Id. at 298.)

The DEA began its investigation of the Austin Knowles organization in

October 2001. (R. Vol. 6, at 1045.) The investigation began after the arrest of

Gordon Hawton, who was caught trying to bring 60 kilograms of cocaine into the

United States from the Bahamas. (Id. at 1045-46.) Hawton provided more

information about the organization, including the names of several members. (Id.

at 1047.) The DEA used the information to get a wiretap on the telephone of Ian

Musgrove, another member of the organization who distributed the organization’s

drug shipments once they reached Florida. (Id.)

Information from the Bahamian and United States wiretaps provided the

basis for a large-scale investigation of the organization. In July 2002, the Drug

Enforcement Administration intercepted calls between Emmanuel and Musgrove.

(R. Vol. 4, at 450-52.) In the calls, they discussed a past shipment of marijuana

into the United States from the Bahamas. (R. Vol. 3, at 437-42; R. Vol. 4, at 447-

48.) Musgrove was responsible for distributing the marijuana in Florida and

collecting payment for Emmanuel. (Id.) In one conversation, Musgrove said that

he had collected $60,000, but Emmanuel complained that he should have collected

more. Emmanuel said that he needed the money to organize the distribution of

drugs from Colombia. (Id. at 459, 463-65.) Using information from the calls,

4
DEA agents stopped Musgrove at Miami International Airport, and seized $61,000

from him. (R. Vol. 3, at 333-34, 342-44.) Musgrove told the agents that he

planned to deliver the money to Emmanuel in Jamaica. (R. Vol. 4, at 466-67.)

Musgrove was allowed to fly to Jamaica, where he met Emmanuel and told him

about the seizure. (Id.)

In October 2002, Austin Knowles called Musgrove and told him to expect a

shipment of cocaine. (R. Vol. 4, at 467-68.) Musgrove was responsible for

distribution of the shipment once it reached Florida. He later received additional

instructions regarding the shipment from Emmanuel. (Id. at 472.) The DEA

learned more about this shipment from Kurt McBride. McBride had been

involved in transporting drugs for the organization during the 1990s. By 2002, he

was building boats. (R. Vol. 6, at 832-33.) In spring 2002, Austin Knowles

recruited McBride to build two drug-smuggling boats for the shipment of cocaine.

(Id. at 833-34.) Austin Knowles also told McBride that Emmanuel was his “right-

hand man,” that Emmanuel “was the one that handled the cocaine,” and after this

shipment, Emmanuel would take over as head of the organization. (Id. at 835-36,

873-75.)

On October 7, 2002, Austin Knowles asked McBride to take 300 kilograms

of cocaine from the Bahamas to Florida. (Id. at 838-39, 845.) McBride agreed to

5
transport the cocaine. On October 20, 2002, he left Florida and piloted one of the

boats, the Defense Rests, to the Bahamas. (Id. at 847, 863.) When the boat was

close to the Bahamas, Austin Knowles called McBride and told him that there

were mechanical problems with the boat that was supposed to meet him. (Id. at

848.) During this time, the Drug Enforcement Unit intercepted calls between

Emmanuel and Austin Knowles in which they discussed engine and propeller

problems on one of their boats, and whether they should ask McBride to meet their

boat closer to the island. (R. Vol. 4, at 635-39.)

McBride eventually found the boat that had the cocaine and loaded the

shipment into secret compartments on the Defense Rests. (R. Vol. 6, at 848-52.)

In another intercepted phone call, Emmanuel directed an associate to go to a

certain location and look out for law enforcement activity. (R. Vol. 5, at 678-79.)

On the way back to the United States, McBride was stopped by Bahamian law

enforcement agents. The Defense Rests was then towed by the United States

Coast Guard to Florida. (R. Vol. 6, at 853-54.) After 397 kilograms of cocaine

was found in the boat, McBride was arrested. (Id. at 855-56, 859, 1022-26.) The

next day, Emmanuel was on the phone with Austin Knowles, and the two

discussed McBride’s arrest and seizure of the cocaine. (R. Vol. 5, at 690-92.)

Despite this seizure, the organization continued trafficking in cocaine. On

6
October 30, 2002, Emmanuel and Austin Knowles talked about the logistics of a

second shipment of cocaine. (R. Vol. 5, at 694-96.) Emmanuel also instructed an

associate on how to bring a boat into Florida without attracting attention from law

enforcement officers. (Id. at 698-700.) The second shipment of 340 kilograms of

cocaine was made later that day. (R. Vol. 6, at 952.) Once in Florida, the

shipment was divided up for delivery to various distributors, including 35

kilograms for “Shervin’s people in Jamaica .... ” (Id. at 965-66.)

The next shipment took place on November 18, 2002. For this shipment,

Austin Knowles called Emmanuel to make sure that he would check the

seaworthiness of the ship. (R. Vol. 5, at 705-08.) One of Emmanuel’s associates

reported to him that “everything cool” and that the cocaine had been loaded. (Id.

at 709-13.) The next day, Emmanuel told another one of his associates that “his

guys” had transferred the cocaine and that the shipment was “on their way” to

Florida. (Id. at 714-16.) This time, however, law enforcement officers were able

to stop the shipment and seized 370 kilograms of cocaine. (R. Vol. 6, at 1035-39,

1041-42.) After this seizure, one of Emmanuel’s associates suggested that the

seizures were because of a wiretap. (R. Vol. 5, at 717-19.) But Emmanuel

disagreed, saying that his crew did not use telephones while they were making

shipments. (Id. at 719.)

7
 The wiretaps and seizures provided the United States government with

significant evidence against the Austin Knowles organization. On December 12,

2002, a federal grand jury in the Southern District of Florida returned an

indictment against Emmanuel and other members of the Austin Knowles

organization. Emmanuel was charged with conspiring to import cocaine into the

United States, attempting to import cocaine into the United States, possessing with

intent to distribute cocaine while on board a vessel of the United States, and two

counts of importing cocaine into the United States. Emmanuel was arrested on

January 23, 2006.

Before his trial, Emmanuel filed a motion to suppress evidence obtained

from the Bahamian wiretap. Emmanuel argued that the wiretap was illegal and

that any evidence from the wiretap should be excluded. After conducting a

hearing on the issue, the district court denied the motion. (R. Vol. 3, at 374.) On

August 7, 2006, Emmanuel proceeded to a trial by jury. At trial, evidence was

introduced from the Bahamian and DEA wiretaps. Three of Emmanuel’s

codefendants testified against him. The jury found Emmanuel guilty on all five

counts. On January 8, 2007, the district court sentenced Emmanuel to 348 months

of imprisonment.

Emmanuel appeals his conviction on four grounds. First, he argues that the

8
district court should have granted the motion to suppress evidence obtained from

the Bahamian wiretap. Second, he argues that there was insufficient evidence to

convict him. Third, he argues that the district court should have declared a

mistrial after one of the government’s witnesses made a comment regarding

Emmanuel’s bail status. Fourth, he argues that the district court should have

excluded opinion testimony regarding the meaning of some of the intercepted

phone calls.

II. Discussion

A. The Bahamian Wiretap Evidence

Emmanuel filed a pre-trial motion to suppress evidence obtained from the

Bahamian wiretap. He argued that the wiretap was illegal and that any evidence

from the wiretap should be excluded. After conducting a hearing on this issue, the

district court denied the motion. A denial of a motion to suppress presents a

mixed question of fact and law. United States v. Delancy, 502 F.3d 1297, 1304

(11th Cir. 2007). We review the findings of fact for clear error and the

interpretation and application of law de novo. Id.

The general rule is that evidence obtained from searches carried out by

foreign officials in their own countries is admissible in United States courts, even

if the search would not otherwise comply with United States law or the law of the

9
foreign country. United States v. Rosenthal, 793 F.2d 1214, 1230 (11th Cir.

1986); United States v. Morrow, 537 F.2d 120, 140 (5th Cir. 1976).1 But this

Circuit has recognized two narrow exceptions to this rule. The first exception is

that evidence from foreign searches is inadmissible if the conduct of the foreign

officials during the search “shocks the judicial conscience.” Id. This exception is

based on a federal court’s inherent “supervisory powers over the administration of

federal justice.” Birdsell v. United States, 346 F.2d 775, 783 n.10 (5th Cir. 1965);

United States v. Barona, 56 F.3d 1087, 1096 (9th Cir. 1995). The second

exception is that evidence from foreign searches is subject to the exclusionary rule

if American law enforcement officials substantially participated in the search or if

the foreign officials conducting the search were actually acting as agents for their

American counterparts. Rosenthal, 793 F. 2d. at 1231. This exception is based on

a defendant’s Fourth Amendment rights. See Morrow, 537 F.2d at 140. This

Court followed this line of cases in deciding United States v. Behety, 32 F.3d 503,

510 (11th Cir. 1994) which Emmanuel relies upon in arguing that the Bahamian

wiretap evidence should be suppressed.

Emmanuel argues that the first exception applies to this case because the

1
Decisions of the former Fifth Circuit entered before October 1, 1981, are binding
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).

10
conduct of the Bahamian officials “shocks the judicial conscience.” He says that

the method for obtaining a wiretap under Bahamian law does not allow for judicial

review by a neutral magistrate and “is so antithetical to our system’s sense of

fairness that this Court should find that the evidence is excludable.” (Appellant’s

Br. at 40.) The “shocks the judicial conscience” standard is not well-defined. But

it is clear enough that the conduct of the Bahamian officials does not shock our

conscience. Sergeant Woodside’s request for a wiretap on Emmanuel’s telephones

went through four levels of review and the request had to be renewed every 14

days. The “shocks the judicial conscience” standard is meant to protect against

conduct that violates fundamental international norms of decency. United States

v. Mitro, 880 F.2d 1480, 1483 (1st Cir. 1989). Fundamental international norms

of decency do not require judicial review in all jurisdictions of applications to

intercept wire communications. Therefore, the Bahamian wiretap evidence is not

excludable under the first exception to the general rule of admissibility.

Next, Emmanuel argues that the second exception applies to this case

because “the Bahamian officials did, in fact, act as agents of the United States in a

joint venture to interdict this [sic] narcotics.” (Appellant’s Br. at 32). But this

exception is based on a defendant’s Fourth Amendment rights. Emmanuel cannot

show that he is entitled to the protections of the Fourth Amendment. In United

11
States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court held that the

Fourth Amendment does not apply to the search and seizure by United States

agents of property that is owned by a nonresident alien and located in a foreign

country. Aliens do enjoy certain constitutional rights, but not the protection of the

Fourth Amendment if they have “no previous significant voluntary connection

with the United States ....” Id. at 271. Here, Emmanuel was a citizen and resident

of the Bahamas with no significant voluntary attachment to the United States.

And the wiretapped telephones were located in the Bahamas. Emmanuel’s

participation in a drug trafficking conspiracy directed at importing drugs into the

United States does not mean that he was part of the “national community”

protected by the Fourth Amendment. Id. at 265. Indeed, he was entirely outside

of that community. “Under these circumstances, the Fourth Amendment has no

application.” Id. at 275. Because the Fourth Amendment does not apply to

nonresident aliens whose property is searched in a foreign country, there is no

need to decide whether the Bahamian officials acted as agents of the United States

or whether the wiretap was a joint venture. The Fourth Amendment exclusionary

rule simply is not available to Emmanuel with respect to the Bahamian wiretap

evidence.

In describing the relevant law on this issue, Emmanuel cites to Behety, a

12
case decided by the Eleventh Circuit after Verdugo-Urquidez. In Behety, the

defendants were on board a ship in Guatemala when Guatemalan officials

conducted a search of the ship and found cocaine. An agent from the Drug

Enforcement Administration went aboard the ship and videotaped the search, but

did not assist the Guatemalan officials. The defendants argued that evidence from

the search was inadmissible because American officials substantially participated

in the search. The Court held that “the DEA agents’ presence and even

videotaping of the search [did] not constitute the level of participation this

exception contemplates.” Behety, 32 F.3d at 511.

It is certainly true that the Court in Behety did not discuss Verdugo-

Urquidez, and did not explicitly address the antecedent question of whether the

defendants had a “voluntary attachment to the United States” that would entitle

them to the protections of the Fourth Amendment. We are bound to apply the

precedent of a prior panel even if we are convinced that the prior panel is mistaken

about the proper analysis, and even if the prior panel completely overlooked a

Supreme Court decision on point. But our prior panel precedent rule does not

mean that we are obliged to ignore Verdugo-Urquidez in this case. The critical

factual distinction is that in Behety one of the defendants was a resident alien and

the other defendant was a United States citizen. Behety, 32 F.3d at 509-10. We

13
are bound only by the holding of the case and not by dicta. Watts v. BellSouth

Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir. 2003). The Court in Behety did

not, and could not, decide whether the Fourth Amendment applies to a search of a

nonresident alien in a foreign country. That question is squarely presented in this

case and so we are free to rely on the analysis and holding of Verdugo-Urquidez.

The Fourth Amendment exclusionary rule does not apply to the interception of

wire communications in the Bahamas of a Bahamian resident. Emmanuel has not

shown that his constitutional rights were violated by admission of the Bahamian

wiretap evidence. Therefore, the district court properly denied the motion to

suppress.

Emmanuel also argues that the district court erred in admitting written

evidence regarding approval of the Bahamian wiretap. At trial, Sergeant

Woodside explained the procedure under Bahamian law for getting approval for a

wiretap. (R. Vol. 4, at 589.) The government asked Sergeant Woodside if he

could identify Trial Exhibit 2-B and he said that it was “an approval from the

Commission of Police.” (Id.) The government then moved to submit the written

approval into evidence. (Id. at 591.) Emmanuel objected on the grounds that the

evidence contained inadmissible hearsay. The district court overruled the

objection. We review a district court’s admission of evidence for an abuse of

14
discretion. United States v. Arbolaez, 450 F.3d 1283, 1289 (11th Cir. 2006).

Furthermore, “evidentiary and other nonconstitutional errors do not constitute

grounds for reversal unless there is a reasonable likelihood that they affected the

defendant’s substantial rights; where an error has no substantial influence on the

outcome, and sufficient evidence uninfected by error supports the verdict, reversal

is not warranted.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.

1990).

Before addressing this issue, it is worth pointing out what Emmanuel does

not say. Emmanuel does not say that the district court erred in allowing the

written approval into evidence during the pre-trial suppression hearing. When the

government presented the written approval at the suppression hearing, Emmanuel

did not raise a hearsay objection. (R. Vol. 3, at 331.) And in his brief to this

Court, Emmanuel did not mention the suppression hearing, but rather specifically

referred to “the Government’s Trial Exhibit 2-B.” (Appellant’s Br. at 38.) The

focus of our review, therefore, is on the effect the evidence had on the trial, not the

suppression hearing.

With this in mind, we do not decide whether the written approval of the

Bahamian wiretap contained inadmissible hearsay because it is unlikely that the

evidence affected the Appellant’s substantial rights. The written approval merely

15
supplemented the narrative structure of the government’s case, providing a

transition from Sergeant Woodside’s initial investigation of the Austin Knowles

organization to discussing the wiretap on Emmanuel’s phones. The evidence does

not affect any element of the crimes at issue in this case nor any defense asserted

by Emmanuel. The jury’s verdict was not influenced by evidence that the

Commissioner of Police approved the Bahamian wiretap, but rather by evidence of

Emmanuel’s own incriminating conversations and corroborating evidence

involving seizures of drugs and drug money.

Emmanuel also argues that admitting the written approval of the Bahamian

wiretap into evidence violated his Sixth Amendment right to confront the

witnesses against him. (Appellant’s Br. at 38.) He says that the evidence is

testimonial hearsay as defined by Crawford v. Washington, 541 U.S. 36, 52

(2004). At trial, Emmanuel made a hearsay objection to the evidence, but did not

mention the Confrontation Clause. “A hearsay objection to testimony at trial,

standing alone, does not preserve a constitutional challenge under the

Confrontation Clause for appeal.” Arbolaez, 450 F.3d at 1291 n.8. Because

Emmanuel did not make a timely Confrontation Clause objection at trial, we

review for plain error only. Id. at 1291. To demonstrate plain error, there must be

an “(1) error (2) that is plain and (3) that affects substantial rights.” Id. But we do

16
not decide whether allowing the written approval into evidence was error because,

as discussed in connection with the hearsay objection, it is unlikely that the

evidence affected Emmanuel’s substantial rights. He has not shown that any

alleged error by the district court in allowing the written approval into evidence

requires reversal.

B. Sufficiency of the Evidence

Emmanuel argues that there was insufficient evidence to support the jury’s

verdict. We review challenges to the sufficiency of evidence de novo, viewing the

evidence in the light most favorable to the government. United States v. Chastain,

198 F.3d 1338, 1351 (11th Cir. 1999). “A conviction must be upheld unless the

jury could not have found the defendant guilty under any reasonable construction

of the evidence.” Id.

The record from the trial demonstrates that there was sufficient evidence to

support the jury’s verdict. The evidence showed that Emmanuel was a member of

the Austin Knowles organization and participated in the organization’s drug

trafficking. The primary evidence of Emmanuel’s participation was his own

incriminating conversations, intercepted from both the Bahamian and United

States wiretaps. In these conversations, Emmanuel discussed drug payments,

plans to ship large amounts of cocaine to Florida, the availability of drug

17
smuggling ships, and security for the smuggling operations. All of this evidence

was corroborated by seizures of drugs and drug money. The government also

presented testimony from coconspirators, each of whom knew about Emmanuel

either through personal dealings with him or because of co-conspirator statements

by Austin Knowles.

In the face of this evidence, Emmanuel focuses on alleged omissions in the

government’s case and arguments relating to the credibility of the government’s

witnesses. But “[i]t is not necessary for the evidence to exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every conclusion except

that of guilt.” See United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006).

And “[t]o the extent that Appellant[’s] argument depends upon challenges to the

credibility of witnesses, the jury has exclusive province over that determination

and the court of appeals may not revisit the question.” Chastain, 198 F.3d at 1351.

Emmanuel has not demonstrated that there was insufficient evidence to support

the jury’s verdict.

C. Motion for Mistrial

At trial, the government called Sergeant Tyrone Turnquest of the Royal

Bahamas Police Force as a witness. Sergeant Turnquest identified several voices

on taped recordings of phone calls, including the voice of Emmanuel. During the

18
government’s direct examination, Sergeant Turnquest explained how he knew

Emmanuel:

Q. Can you describe the frequency of the amount of time you would deal
with him? Not where or the circumstances, just about how often you would
deal with him.
A. Each year from 1996 to 2000, during the first Friday of June, that
weekend around there, I would have seen him the period ‘96 to ‘97 as he
was signing in as a condition of bail.
THE COURT: Let me stop you for a second. You don’t have to tell
us how you would have seen him, but the question is tell us the number of
times you would have seen and talked with Mr. Emmanuel.
MR. SCHUMACHER: Judge, I will reserve a motion as well.

(R. Vol. 4, at 570-71.) Later, out of the presence of the jury, defense counsel

moved for a mistrial based on Sergeant Turnquest’s comment about Emmanuel’s

condition of bail. (Id. at 640-41.) The district court denied the motion, stating

that “it would be better had it not been said, but it was a fleeting reference and . . .

is [not] the sort of thing that rises to the level of justifying the grant of a mistrial.”

(Id. at 644.)

We review a decision not to grant a mistrial for abuse of discretion. United

States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007). The district court is in

“the best position to evaluate the prejudicial effect of a statement or evidence on

the jury.” Id. Emmanuel must show that his “substantial rights are prejudicially

affected. This occurs when there is a reasonable probability that, but for the

19
remarks, the outcome of the trial would have been different.” Id.

Emmanuel has not shown that Sergeant Turnquest’s comment prejudiced

his substantial rights. The mere utterance of the word jail, prison, or arrest does

not, without regard to context or circumstances, constitute reversible error per se.

United States v. Villabona-Garnica, 63 F.3d 1051, 1058 (11th Cir. 1995). In a

case, such as this one, where the comment is brief, unelicited, and unresponsive,

adding nothing to the government’s case, the denial of a mistrial is proper. Id.; see

also United States v. Beasley, 2 F.3d 1551, 1559 (11th Cir. 1993) (witness said he

met the defendant in prison in 1970's in response to question about length of

acquaintance); United States v. Veteto, 701 F.2d 136, 139-40 (11th Cir. 1983)

(witness said that the defendant had been in prison before in response to question

about why the defendant wanted a machine gun). Moreover, in light of the

substantial evidence against Emmanuel, it is unlikely that, but for the reference to

his condition of bail, the outcome of the trial would have been different.

Emmanuel also says that the district court should have given a “curative

instruction as a lesser alternative to the mistrial.” (Appellant’s Br. at 51.) Because

Emmanuel never requested a curative instruction, he essentially faults the district

court for failing to sua sponte give a curative instruction. But the decision not to

give a curative instruction was well within the district court’s discretion. As the

20
government points out, the comment was “but a brief reference during a relatively

long trial,” and a curative instruction could have drawn “unwarranted attention to

the comment,” something that Emmanuel wanted to avoid. (Appellee’s Br. at 36.)

“To be sure, there are occasions when a trial judge, without request from counsel,

interrupts the proceedings to deliver a cautionary instruction to eliminate undue

prejudice. It does not follow, however, that the failure of the court to interrupt the

proceeding to give a cautionary instruction amounts to constitutional error.”

Willis v. Kemp, 838 F.2d 1510, 1520 n.19 (11th Cir. 1988). Emmanuel, therefore,

has not demonstrated that the district court abused its discretion by not granting a

mistrial or giving a curative instruction.

D. Opinion Testimony Regarding Drug Codes and Jargon

At trial, the government also offered Sergeant Woodside as an expert in

interpreting drug codes and jargon used during the taped conversations. Defense

counsel made a number of objections to Sergeant Woodside’s testimony, including

improper opinion, relevance, narrative, and improper summary. The district court

overruled the objections, explaining that “15 years experience of this officer, and

his background in analyzing the code words is enough [under Rule 702] to put it

in front of the jury.” (R. Vol. 4, at 615.) We review the district court’s decisions

regarding the admissibility of expert testimony for abuse of discretion. United

21
States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004). Furthermore, “evidentiary

and other nonconstitutional errors do not constitute grounds for reversal unless

there is a reasonable likelihood that they affected the defendant’s substantial

rights; where an error had no substantial influence on the outcome, and sufficient

evidence uninfected by error supports the verdict, reversal is not warranted.”

Arbolaez, 450 F.3d at 1290.

The operations of narcotics dealers, including drug codes and jargon, are

proper subjects of expert testimony. United States v. Garcia, 447 F.3d 1327, 1335

(11th Cir. 2006). Emmanuel argues that Sergeant Woodside’s testimony “went far

beyond testimony concerning drug parlance and jargon.” (Appellant’s Br. at 53.)

He says that the government used Sergeant Woodside as a summary witness and

cites to cases from the Second Circuit to support his argument. The concern is

that “particular difficulties, warranting vigilance by the trial court, arise when an

expert, who is also the case agent, goes beyond interpreting code words and

summarizes his beliefs about the defendant’s conduct based upon his knowledge

of the case.” United States v. Dukagjini, 326 F.3d 45, 53 (2d Cir. 2003).

Although courts often approve of testimony interpreting drug code words, such

expert testimony may unfairly provide the government with an additional

summation by having the expert interpret the evidence, and may come dangerously

22
close to invading the province of the jury. Id.; see also United States v. Nersesian,

824 F.2d 1294, 1308 (2d Cir. 1987).

Most of Sergeant Woodside’s testimony was specific and closely related to

his interpretation of drug codes and jargon. Sergeant Woodside explained that

“car” means boat; “water” sometimes means fuel and other times means the ocean;

“the road could get bad” means the weather could get bad; “pothole” means there

is a delay with a shipment; and “coming up fishing” means coming directly to an

island. Other codes and jargon dealt directly with drugs. Sergeant Woodside

explained that “two dollars” means $2,000; “D Boys” means agents from the Drug

Enforcement Administration; “scanner” means wiretap; “movements” means law

enforcement activities; “girls” means cocaine; “pouring that concrete” means

exchange of the cocaine; “a check for $300” means 300 kilos of cocaine; and “for

them to find the girls with this guy, they got to pick him out of the water, and, you

know, and cut” means they have to take the boat out of the water and cut it up to

find the cocaine. This testimony was properly admitted. Garcia, 447 F.3d. at

1335.

Some of Sergeant Woodside’s testimony, however, was not specific to his

interpretation of drug codes and jargon. At times, his testimony went beyond

interpreting code words to interpret conversations as a whole. Nevertheless, it is

23
unlikely that the testimony affected Emmanuel’s substantial rights. During

Sergeant Woodside’s testimony, the district court emphasized that “[i]t is going to

be up to the jury whether the testimony is credible that this means something as

opposed to something else. That is one of those jury issues that the jury will have

to determine.” (R. Vol. 4, at 615.) Moreover, the primary evidence against

Emmanuel consisted of his own incriminating conversations, intercepted from

both the Bahamian and United States wiretaps. Even if none of Sergeant

Woodside’s expert testimony was admissible, the jury could have easily

interpreted the recorded conversations as involving drugs based on other evidence

in the case, including actual seizures of drugs and drug money and testimony from

coconspirators. Considering the substantial evidence against Emmanuel, Sergeant

Woodside’s opinion testimony that went beyond interpreting drug codes and

jargon was merely cumulative and was not essential to the jury’s verdict. See

Dukagjini, 326 F.3d at 62. Therefore, any alleged error by the district court in

allowing Sergeant Woodside’s opinion testimony into evidence does not require

reversal.

III. Conclusion

For the reasons discussed above, the judgment of the district court is

AFFIRMED.

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