United States v. Michael White

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5181

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL LAWRENCE WHITE, a/k/a Big Boy,

Defendant - Appellant.

No. 12-4158

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

VICTOR ANDRE THOMAS, a/k/a Flak, a/k/a Flat,

Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cr-00491-RDB-12; 1:10-cr-00491-RDB-3)

Argued: January 30, 2013 Decided: April 3, 2013

Before MOTZ, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.

ARGUED: Ruth J. Vernet, RUTH J. VERNET, ESQ., LLC, Rockville,
Maryland; Gary Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC,
Baltimore, Maryland, for Appellants. Christopher John Romano,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

In 2010, a Harford, Maryland, drug trafficking

investigation yielded the arrests of Appellants Victor Thomas

and Michael White. 1 Thomas and White were charged with

conspiracy to distribute cocaine and cocaine base, in violation

of 21 U.S.C. § 846, and possession with intent to distribute the

same, in violation of 21 U.S.C. § 841(a)(1). Additionally,

Thomas was charged with felony possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1).

Following a four-day jury trial, Thomas and White were

convicted on both the conspiracy charge and the drug charge; a

hung jury resulted on Thomas’s gun charge. Thomas and White now

appeal their convictions on multiple grounds. Because we find

their arguments lacking in merit, we affirm.

I.

Thomas and White put forth several challenges to the

evidence introduced at trial. One of these issues they raised

below; the others they did not. We review each alleged error in

1
Twelve other individuals were also apprehended. Eleven of
them pled guilty. The twelfth, Rochelle Stokes, was tried with
Thomas and White but was acquitted via a Rule 29 motion for
judgment of acquittal at the end of the government’s case.

3
keeping with the preservation diligence, or lack thereof, that

Thomas and White exercised.

A.

Thomas and White first allege that the district court erred

in declining to suppress evidence retrieved via wiretap. We

review the factual findings underlying a motion to suppress for

clear error; the legal conclusions we review de novo. United

States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). In every

instance, we view the evidence in the light most favorable to

the party that prevailed below—in this instance, the government.

United States v. Jamison, 509 F.3d 623, 628 (4th Cir. 2007).

The Harford County Narcotics Task Force (HCNTF) conducted

the drug investigation leading to the apprehension of Thomas and

White. As part of its efforts, the HCNTF obtained authorization

to wiretap a cell phone number connected to Thomas. The HCNTF

monitored this number from April 26, 2010, to May 5, 2010, and,

during that time, intercepted nearly two thousand phone calls.

Thomas and White maintain that the HCNTF’s interceptions

violated both federal law and attorney-client privilege.

Governmental wiretaps must comport with Title III of the

Omnibus Crime Control and Safe Streets Act (Omnibus Act), 18

U.S.C. § 2510-2522, a statute that attempts to balance

individuals’ right to privacy against the beneficial inroads

4
that electronic monitoring can provide in fighting crime, United

States v. Clerkley, 556 F.2d 709, 712 (4th Cir. 1977). Relevant

to this case, the Act requires the government to minimize its

interceptions where possible to avoid monitoring communications

that are nongermane to a suspected offense. 18 U.S.C. § 2518(5)

(“Every order [authorizing a wiretap] . . . shall be executed as

soon as practicable, [and] shall be conducted in such a way as

to minimize the interception of communications not otherwise

subject to interception under this chapter . . . .”).

Thomas and White assert that the HCNTF violated the Omnibus

Act by failing to minimize any of its interceptions on Thomas’s

phone. They also aver that because one of the intercepted calls

was placed to an attorney, the HCNTF violated attorney-client

privilege. Notably, Thomas did not speak with the attorney

during the call that Thomas and White reference; he left a

voicemail message in which he simply inquired about a court date

for a civil case and asked the attorney to return his call.

When Thomas asked the attorney to return his call, however, he

provided a phone number different from the number that the HCNTF

was monitoring.

Based on these alleged violations, Thomas and White moved

pre-trial to suppress all evidence “derived from” the wiretaps.

The district court denied the motion, concluding that the

wiretap on Thomas’s phone lacked “any minimization issues.”

5
 1.

We think it pertinent to note at the outset that the

government has not clearly indicated whether the HCNTF indeed

minimized any of its interception on Thomas’s phone. In

responding to pre-trial motions, the government simply

maintained that given the nature of the investigation, the

HCNTF’s interceptions comported with the minimization

requirement of the Omnibus Act. Furthermore, at the pre-trial

motions hearing, when the court queried the government, it again

responded in a manner that lacked any firm indication of

minimization:

I’m not in a position to advise the court at this
point. I asked the detective were in fact calls
minimized and his response to me was there may be
calls where portions of them were minimized. I can’t
speak with any more specificity than that. There were
calls I don’t think were minimized in their entirety.
There may have very well have been calls that were
minimized in part.

The government’s brief here is no more enlightening. In fact,

it noticeably lacks any delineation of minimization efforts or

explicit denial of Thomas and White’s allegation that “out of

thousands of calls not one was minimized.”

We are not unaware of the statutory framework that exists

for addressing alleged violations of the Omnibus Act. See 18

U.S.C. § 3504(a)(1) (providing that when an aggrieved party

alleges that “evidence is inadmissible because it is the primary

6
product of an unlawful act [under the Omnibus Act] or because it

was obtained by the exploitation of an unlawful act, the

opponent of the claim shall affirm or deny the occurrence of the

alleged unlawful act”); United States v. Apple, 915 F.2d 899,

905 (4th Cir. 1990) (recognizing that if allegations brought

under § 3504(a)(1) lack specificity, the government can respond

with a general denial). Because Thomas and White have not

contested the adequacy of the government’s response, however, we

decline to rule on whether such response was sufficient as a

matter of law. Rather, we simply document the government’s

persistent equivocation on this point and note that it forces us

to proceed, for the sake of argument only, on the assumption

that Thomas and White’s allegation of zero minimization is true.

Even assuming the truth of this allegation, however, we find no

error in the admission of the wiretap evidence.

a.

Assessing governmental compliance with the minimization

mandate of the Omnibus Act is not a formulaic process.

Reasonableness is the overarching standard, but the facts of

each case heavily impact a determination of whether the

government’s behavior was in fact “reasonable.” Clerkley, 556

F.2d at 716 (“In testing compliance with [the minimization]

requirement, the courts have proceeded on a case-by-case basis,

7
invoking a standard of reasonableness.”). We employ three

factors in our evaluation: “(1) the nature and scope of the

alleged criminal enterprise; (2) the government’s reasonable

expectation as to the content of, and parties to, the

conversations; and (3) the degree of judicial supervision while

the wiretap order is being executed.” Id.

b.

Here, we conclude that regardless of whether the HCNTF

minimized any of its interceptions on Thomas’s phone, it

complied with the mandate in the Omnibus Act. First, the

“nature and scope” of Thomas’s and White’s criminal activities

weighs in favor of unrestricted interceptions. This Court has

previously recognized that “[w]hen law enforcement officials are

confronted with large, far-flung and on-going criminal activity

involving multiple parties, they are afforded greater latitude

in conducting wiretaps.” Id.; see also United States v.

Quintana, 508 F.2d 867, 874 (7th Cir. 1975) (“Large and

sophisticated narcotics conspiracies may justify considerably

more interception than would a single criminal episode.”). The

HCNTF was investigating an elaborate drug conspiracy that

included at least thirteen individuals. Without a doubt,

Thomas’s and White’s conduct was “far-flung,” “on-going,” and

“involve[ed] multiple parties.” Clerkley, 556 F.2d at 716.

8
Thus, the HCNTF had “greater latitude” in executing its wiretap

than it might have otherwise had if the investigation involved

fewer individuals and isolated crime. We conclude therefore

that a ten-day unrestricted wiretap on Thomas’s phone, when

examined in light of the first reasonableness factor, satisfied

the minimization requirements of the Omnibus Act. Clerkley, 556

F.2d at 716-17 (“[T]he legitimate investigation of conspiracies

may necessitate the interception of all or almost all

communications over a given period of time.”) (collecting

cases).

Second, we consider the HCNTF’s “reasonable expectation”

regarding the “content of, and parties to” the anticipated

interceptions. Id. at 716. Here, we are concerned with whether

the HCNTF had “sufficient advance knowledge” such that it could

“tailor [its] minimization efforts.” Id. at 717.

Outside of excerpts from the order that authorized the

wiretap on Thomas’s phone, 2 the record provides little assistance

on this point. Nevertheless, we again conclude that the HCNTF

was justified in not minimizing its interceptions. In relevant

part, the order states,

2
The excerpts that Thomas and White have provided here are
from an order that authorized a wiretap for another defendant.
Regardless, because the government has cited to these excerpts
in its brief, we rely on them as accurate reflections of the
authorizing order for Thomas’s phone.

9
 Due to the nature of this electronic surveillance
investigation, . . . and the fact that personal
conversations during intercepted calls may frequently
be interwoven with or precede conversations of a
criminal nature, initially, for the first three days,
all calls intercepted will be both monitored and
recorded for approximately three (3) minutes before
spot monitoring will be utilized. . . . After the
first three days, plant operators are to consider the
previously established patterns of conversations, if
any, and the identities of the conversants in
determining when a conversation is of a non-pertinent
nature. 3

Although this excerpt does not provide explicit indication of

the “advance knowledge” possessed by the HCNTF, its

authorization to intercept the initial three minutes of all

calls for the first three days implies a less-than-robust level

of “advance knowledge.” And this implication is bolstered by

the order’s grant of full discretion to plant operators in

distinguishing which conversations were pertinent to the

investigation. These factors lead us to again conclude that to

the extent the HCNTF failed to minimize any of its interceptions

on Thomas’s phone, such action was reasonable.

3
The record lacks any quotes from the applications and
affidavits on which the authorizing judge based his finding of
probable cause for issuance of the order. We note, however,
that Thomas and White have not contested the district court’s
pre-trial finding that the order was supported by “ample
probable cause.” Accordingly, we rely on what the order implies
regarding the facts that necessitated its issuance, viewing it
in a manner that favors the government. See Jamison, 509 F.3d
at 628.

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 Finally, we address the third factor, judicial supervision.

As to this step, the record is silent. We may still conclude,

however, that the HCNTF’s presumably unrestricted interceptions

were reasonable. While the Omnibus Act permits “the

[authorizing] judge to ask for interim reports from the

investigating agents,” it does not require that the judge do so.

Quintana, 508 F.2d at 875 (noting that “[t]he statute permits

but does not require” interim reports); see also 18 U.S.C.

§ 2518(6) (“Whenever an order authorizing interception is

entered pursuant to this chapter, the order may require reports

to be made to the judge who issued the order showing what

progress has been made toward achievement of the authorized

objective and the need for continued interception. Such reports

shall be made at such intervals as the judge may require.”).

Accordingly, even assuming that the HCNTF provided no progress

reports to the authorizing judge, its unrestricted interceptions

were not per se unlawful. Cf. Clerkley, 556 F.2d at 718 (“Where

the authorizing judge required and reviewed interim reports,

courts have been more willing to find a good faith attempt at

minimization.” (citing Quintana, 508 F.2d at 875)).

Having reviewed the limited record and the circumstances

under which the HCNTF conducted its wiretap on Thomas’s phone,

we conclude that the HCNTF acted reasonably, even if it failed

to minimize any of its interceptions. Simply put, Thomas and

11
White have produced no evidence that compels us to find error.

And although the government’s evidence is slim, we must examine

it in a manner that inures to its benefit. Jamison, 509 F.3d at

628. Accordingly, we hold that the district court properly

denied Thomas and White’s motion to suppress the government’s

wiretap evidence based on their contention that the HCNTF failed

to minimize its interceptions.

2.

We turn now to Thomas and White’s allegation that the

government violated Thomas’s attorney-client privilege by

intercepting his voicemail message. Evidentiary rulings are

subject to harmless error review. See United States v. Cole,

631 F.3d 146, 154 (4th Cir. 2011) (“[A] conviction will not be

overturned on account of an erroneous evidentiary ruling when

that error is deemed harmless within the meaning of Federal Rule

of Criminal Procedure 52(a).”). Under this standard, “to find a

district court’s error harmless, we need only be able to say

with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.” United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (quoting United States

v. Heater, 63 F.3d 311, 325 (4th Cir. 1995)) (internal quotation

marks omitted). Here, we conclude that any violation of

12
Thomas’s attorney-client privilege was harmless; thus, we

decline to rule on whether the district court properly denied

Thomas and White’s suppression motion on this basis. See United

States v. Banks, 482 F.3d 733, 741 (4th Cir. 2007) (“We need not

decide whether the district court erred . . . because we hold

that any error would be harmless . . . .”).

Thomas and White allege,

Given the obvious importance of the call, as well
as the fact that the interception occurred early in
the investigation, there is a substantial probability
that evidence derived from the privileged and
indisputably important call was improperly used as a
basis for further wiretaps or was introduced at
trial . . . .

And the government counters,

[W]hile the call was pertinent from the
standpoint that Thomas provided a different number
than the one he was calling from, no conversations on
the other phone number were ever obtained. The only
line that was intercepted by investigators with regard
to Thomas was the number from which he placed the call
to the attorney’s [voicemail] system.

The government has indicated that it did not intercept

calls on the alternate number given by Thomas, and Thomas and

White have provided no evidence that leads us to conclude

otherwise. Moreover, Thomas’s inquiry related to a civil case,

not this criminal matter. Accordingly, we conclude that any

violation of Thomas’s attorney-client privilege was harmless,

and we decline to reverse Thomas’s and White’s convictions on

13
the ground that the government’s wiretap evidence should have

been suppressed.

B.

Next, we consider the three evidentiary claims that Thomas

and White failed to raise below: (1) that admission of their

criminal history under Federal Rule of Evidence 404(b) was

unduly prejudicial, (2) that Detective Brandon Underhill lacked

sufficient credentials for portions of his expert testimony, and

(3) that Underhill testified both as a fact witness and an

expert witness without appropriate safeguards against jury

confusion. 4

Because Thomas and White failed to preserve these issues,

our “authority to [provide a] remedy . . . is strictly

circumscribed.” Puckett v. United States, 556 U.S. 129, 134

(2009). Indeed, when a party does not inform a trial court of

an error at the time that it occurs, the party is barred from

4
The table of contents and facts section of Thomas and
White’s brief indicates their belief that other law enforcement
officers also provided expert testimony regarding matters about
which they had not been qualified as experts, and that the
district court erred in admitting such testimony. Because
Thomas and White failed to develop this apparent argument in the
body of their brief, we decline to consider it here. See Fed.
R. App. P. 28(a)(9)(A) (requiring the argument section of an
appellant’s opening brief to include the “appellant’s
contentions and the reasons for them”).

14
raising that issue on appeal, id. at 135, unless it can show

that an error “(1) was made, (2) is plain (i.e., clear or

obvious), and (3) affects substantial rights,” United States v.

Strieper, 666 F.3d 288, 295 (4th Cir. 2012) (quoting United

States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010)). Even then,

we “may exercise [our] discretion to correct the error only if

it ‘seriously affects the fairness, integrity or public

reputation of judicial proceedings.’” Id. at 295 (alteration in

original) (quoting Lynn, 592 F.3d at 577).

1.

First, we review Thomas and White’s contention that

admission of their criminal history under Federal Rule of

Evidence 404(b) was unduly prejudicial. Federal Rule of

Evidence 404(b) disallows admission of “[e]vidence of a crime,

wrong, or other act . . . to prove a person’s character in order

to show that on a particular occasion the person acted in

accordance with [that] character.” Although such evidence is

admissible to prove, inter alia, that a defendant had the

requisite “intent” or “knowledge” to commit the crime in

question, Fed. R. Evid. 404(b)(2), it becomes inadmissible if

its “probative value is substantially outweighed by a danger

of . . . unfair prejudice,” Fed. R. Evid. 403.

15
 a.

Pre-trial, the government filed a motion seeking to admit

evidence of a prior narcotics conviction for each appellant and

a prior firearm conviction for Thomas. The district court

granted the motion, reasoning that the evidence was admissible

because it related to the knowledge and intent necessary to

commit the crimes for which Thomas and White were on trial. It

also reasoned that the evidence would not unfairly prejudice

Thomas and White under Federal Rule of Evidence 403 because it

did not “involve conduct that was any more sensational or

disturbing than the crimes” with which Thomas and White were

charged in the present case. Accordingly, at trial, per

stipulation of the parties, the government stated,

White, on or about October 27 of 2001, was convicted
and sentenced . . . for the crimes of controlled
dangerous substance, manufacture, distribution of
narcotics and possession with intent to distribute
narcotics. This evidence is relevant to the issue of
knowledge and intent regarding the crime for which the
defendant stands accused.

Further, regarding Thomas, it stated,

Thomas, on or about August 12, 1992, was convicted and
sentenced . . . for the crime of conspiracy to
distribute cocaine, and[,] . . . on or about October
10, 1997, was convicted and sentenced . . . for the
crime of attempted distribution of cocaine[, and] on
or about June 22, 1994 . . . was convicted . . . on
two counts of criminal possession of a weapon in the
third degree, to wit, handguns.

16
The district court then immediately instructed the jury as

follows:

This evidence is being offered only on the issue of
knowledge and intent. It is not to be accepted by you
that someone is a bad person because of a prior
conviction, it is not to be considered by you in terms
of a propensity to commit an offense. It is merely
being offered on the issue of knowledge and intent,
which is very important in this case, and it’s being
offered in that context alone and no other context.

Following this clarification from the court, the government

proceeded with the remainder of its case.

After the government closed its case, but prior to

presentation of defense evidence and witnesses, Juror Number 12

submitted a list of questions to the court. One of the

questions said, “What is meant by the stipulation for her

knowledge and not to show good or bad person?” After a bench

conference in which the judge shared the questions with counsel

for each party, he said to the jury, “Ladies and gentlemen,

actually [J]uror Number 12, with respect to those

questions, . . . I have made those questions that you

have . . . known to the lawyers, they can address them in

whatever fashion they want.” Counsel for Thomas and White did

not object to the manner in which the court dealt with Juror

Number 12’s questions.

During closing arguments, counsel for White and counsel for

the government both referenced the purpose for which the prior

17
conviction evidence was admitted. In its closing argument, the

government stated, “Now, [counsel for White] in his opening

[argument] told you that his client, I think the word he used

was a p[au]per. Most respectfully, I don’t think there’s any

evidence for that, but I submit to you what there is evidence

[of] is that he’s a criminal.” Similarly, in rebuttal, the

government stated,

Mr. White’s status is not the issue in this case,
ladies and gentlemen. His status is not an issue.
He’s a criminal. Because the evidence that we
presented over the last week establishes that he’s
guilty. And as such, the government has proven his
criminal conduct. We’re not here to prove his status
or attack him as a person.

Again, counsel for Thomas and White recorded no objection to

these statements.

Here, Thomas and White cite Juror Number 12’s question and

the government’s statements during closing as evidence that they

were unfairly prejudiced by admission of the prior conviction

evidence. We disagree.

b.

First, Thomas’s and White’s prior convictions were similar

to the charges they faced in this case. Such evidence was

therefore relevant to whether they possessed the requisite

knowledge and intent to commit the narcotics crimes with which

they were charged. Furthermore, immediately after admission of

the evidence, the court provided clear instructions to the jury

18
as to the legitimate implications of the prior convictions.

Thomas and White argue, of course, that this limiting

instruction was insufficient to assuage the prejudice that

resulted. But they fail to tell us exactly what prejudice

ensued. In their brief, they argue,

When the jurors stated mid-trial that they did not
understand the court’s [404(b)] instructions regarding
use of prior acts to establish whether the defendant
is a “good or bad person,” the court was presented
with clear evidence of unfair prejudice . . . and
[had] an obligation to take appropriate corrective
measures at that time.

But such is not the case. First, “the jurors” did not

collectively state anything regarding a lack of understanding.

Rather, one juror, Juror Number 12, posed a question regarding

the appropriate use of the evidence. Moreover, Juror Number

12’s question did not “present[]” the court “with clear evidence

of unfair prejudice.” Instead, it simply revealed confusion

about the court’s limiting instruction. To the extent that such

confusion resulted in unfair prejudice, that result is not

“clear or obvious” to us, as the plain error standard requires.

Second, we decline to conclude that the government’s

comments during closing arguments caused unfair prejudice.

Taken in context, neither comment clearly referred to White’s

prior conviction; rather, the statements simply urged that on

the whole, the evidence presented during trial indicated that

White was “a criminal.” In our view, the comments referred to

19
White’s status based on his actions in the present case; they

did not beseech the jury to issue a guilty verdict based on

White’s prior criminal conduct. To the extent that the comments

were interpreted as a reference to White’s prior conduct, such a

result is not “clear or obvious.” Thus, we decline to reverse

Thomas’s and White’s convictions based on the district court’s

admission of evidence regarding their previous crimes or the

government’s statements during closing argument.

2.

Next, we review Thomas and White’s contentions regarding

Underhill’s testimony: (1) that portions of it were unsupported

by a reliable methodology and (2) that it mixed fact testimony

and expert testimony, such that the jury was confused.

a.

When the government called Detective Underhill to testify

as an expert, he indicated that he had been employed by the

Harford County Sheriff’s Office for ten years and that he was

presently assigned to work with the HCNTF. He testified that he

had been with the HCNTF for “just over four years” and that his

primary duties were “investigations of mid to upper level drug

traffickers and drug trafficking organizations in and around the

Harford County area.” Underhill further testified that he had

20
received forty hours of specialized training related to

narcotics investigations and had participated “in hundreds of

arrests involving drug investigations.” He also stated that he

had completed course work in other specialized areas related to

drug investigations and undercover operations. Underhill noted

that he had acted in an undercover capacity and that in that

role had purchased cocaine, crack cocaine, oxycodone, and

marijuana. Underhill also attested that he had acted as a

monitor of phone calls for wiretap investigations; he estimated

that he had monitored between 10,000 and 15,000 drug-related

phone conversations during his career. Underhill testified that

he monitored the phone calls that were intercepted on Thomas’s

phone in this case. Relevant to such monitoring, Underhill

indicated that it was “common” for drug conspirators “to attempt

to conceal or code their phone conversations” and that his

“training,” “knowledge,” and “experience” had made him “familiar

with those terms and codes.”

After the parties had an opportunity to examine Underhill

regarding his qualifications, the court asked, “Is there any

challenge to [Underhill’s] expertise with respect to the matter

of drug terminology and drug jargon from the point of view of

the defense counsel?” Defense counsel indicated that it had no

objections. The court then qualified Underhill as an expert “to

testify with respect to drug jargon and drug terms and the

21
methodology of drug distribution,” cautioning the jury that

“[a]s with all witness, [it was] up to [them] to accept or

reject [Underhill’s] testimony.”

Underhill went on to testify as to the meaning of certain

phrases and terms used in the phone calls that were intercepted.

For example, Underhill testified, “Jolly Rancher is a reference

to crack cocaine . . . and Lassie is a reference to powder

cocaine.” He further testified as to the phrase “outfit in the

dryer,” explaining that “in the process of converting cocaine

hydrochloride into cocaine base there is a drying process that

has to take place and this is referencing that drying process.”

And as to the phrase “I don’t think Shorty’s dressed up,”

Underhill interpreted it to mean, “[a]ll [the seller] has is

cocaine powder, he doesn’t have any cocaine that’s been cooked

up into crack cocaine.”

At one point during Underhill’s testimony, referring to a

recorded phone call that had been played for the jury, the

government engaged in the following colloquy with Underhill:

Q. Detective Underhill, there’s a reference to Mr.
Moore telling Mr. White that he was holding that
for him and Mr. White responding that he has the
change for that.

A. Yes.

Q. What is that a reference to, sir?

A. Mr. Moore had cocaine for Mr. White and Mr. White
was indicating that he had money for him.

22
Immediately following this testimony, without any objection by

defense counsel, the court initiated a bench conference and

cautioned the government to keep Underhill’s testimony within

“the ambit of an expert.” In the court’s view, “the phrase I

was holding that for you in no way involve[d] expertise as to

drug language.” The court did not strike this testimony or

instruct the jury to disregard it, however.

In addition to providing expert testimony as to the

interpretation of coded words and phrases from intercepted phone

calls, Underhill also testified as a fact witness regarding

various aspects of the case—the circumstances of arrests, the

recovery of drugs, and the execution of a search warrant. When

Underhill provided this testimony, neither the parties nor the

court distinguished it from the expert testimony that he

provided. According to Thomas and White, “[Underhill]

seamlessly transitioned between lay and expert testimony.”

At the end of the trial, during its formal jury

instructions, the court referenced Underhill’s testimony,

stating,

In weighing [expert] opinion testimony, you may
consider the witness’s qualifications, his or her
opinions, the reasons for testifying as well as all of
the other considerations that ordinarily apply when
you are deciding whether or not to believe a witness’s
testimony. You may give the opinion testimony
whatever weight, if any, you find it deserves in light
of all of the evidence in this case. You should not,

23
 however, accept opinion testimony merely because I
allow the witness to testify concerning his or her
opinion, nor should you substitute it for your own
reason, judgment and common sense.

b.

Federal Rule of Evidence 702 governs the admission of

expert testimony, stipulating, inter alia, that “[a] witness who

is qualified as an expert . . . may testify in the form of an

opinion . . . if . . . the testimony is the product of reliable

principles and methods.” Notably, Thomas and White do not

challenge Underhill’s qualification as an expert. They instead

contest the methodology that supported his testimony,

maintaining that his opinion regarding the meaning of terms and

phrases was simply “rank speculation.” They aver that “almost

no topic of conversation was safe from Detective Underhill’s

leap to a connection with the drug world” and that “almost never

did Detective Underhill explain the methodology he used in

concluding that certain words [were] used as drug code rather

than because of their plain and ordinary meaning.” We conclude

otherwise.

Before analyzing the intricacies of Underhill’s testimony,

we reiterate the well-settled principle that a “trial judge

[has] considerable leeway in deciding in a particular case how

to go about determining whether particular expert testimony is

reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

24
(1999). Moreover, this Court has previously advised that the

“test of reliability [in Federal Rule of Evidence 702] is

flexible.” United States v. Wilson, 484 F.3d 267, 274 (4th Cir.

2007) (quoting Kumho Tire Co., 526 U.S. at 141-42). For

example, experiential expert testimony is noticeably less

“testable” than testimony based on pure science; nevertheless,

per Rule 702, experience can still form the basis for reliable

expert testimony. Id. Indeed, the advisory committee notes to

Rule 702 explicitly contemplate the use of experiential expert

testimony by law enforcement agents in a trial that involves

drug transactions:

[T]he principle used by the agent is that participants
in such transactions regularly use code words to
conceal the nature of their activities. The method
used by the agent is the application of extensive
experience to analyze the meaning of the
conversations. So long as the principles and methods
are reliable and applied reliably to the facts of the
case, this type of testimony should be admitted.

Fed. R. Evid. 702 advisory committee’s note. Further, this

Court has previously held that “law enforcement officers with

extensive drug experience are qualified to give expert testimony

on the meaning of drug-related code words.” Wilson, 484 F.3d at

275.

Thomas and White are concerned about the explanation of

methodology (or lack thereof) that accompanied Underhill’s

testimony. But our precedent does not require a law enforcement

25
officer providing experiential expert testimony to painstakingly

explain his deciphering methodology. See United States v.

Baptiste, 596 F.3d 214, 222-23 & n.6 (4th Cir. 2010) (holding

that a district court did not commit plain error in admitting

the testimony of a drug expert when that expert had not

“specifically mention[ed] the word ‘methodology’ in his

testimony” but had stated that he was experientially “familiar

with the street-level jargon associated with drug trafficking”

and that he decoded conversations by examining their context).

Thus, to the extent that the district court erred in finding

Underhill’s methodology sufficiently reliable, such error was

not plain.

Thomas and White are also concerned that Underhill

interpreted phrases that were commonplace and not in need of

elucidation by an expert. Again, we find that if the district

court erred, such error was not plain. Even assuming, for the

sake of argument only, that the court should have stricken

Underhill’s testimony regarding the phrase “I was holding that

for you,” we cannot ascertain that the court’s failure to do so

violated Thomas’s and White’s substantial rights, especially in

light of the two instructions the court gave regarding the

weight of the testimony. Accordingly, we decline to reverse the

verdict on this ground.

26
 c.

Thomas and White also contend that when Underhill

“seamlessly” testified both as an expert and fact witness, the

district court failed to adopt adequate safeguards to prevent

jury confusion. Dual-role testimony is not per se prejudicial

to a defendant. Baptise, 596 F.3d at 224. However, when a

witness plays such a dual role, the district court must take

precautions to ensure that the jury does not become confused and

accord undue weight to fact witness testimony given by the

expert. Id. (quoting Wilson, 484 F.3d at 278 n.5). Appropriate

precautions include (1) having the expert witness make two

separate trips to the stand and (2) issuing a cautionary

instruction to the jury regarding the witness’s dual role. Id.

Here, lay and expert testimony were interwoven and no

cautionary instruction was issued; thus, the risk of jury

confusion was high. This Court recently addressed a nearly

identical circumstance in Baptiste. Although it ultimately

declined to reverse the jury verdict in that case because it was

constrained by a plain error standard and “the facts in

the . . . case placed it in a gray area of the law,” the court

issued a caution regarding the handling of dual-role testimony:

[W]e note that the district courts should take steps
to ensure that there is a clear demarcation in the
jury’s mind between a witness’s lay and expert roles.
This may be accomplished, for example, by cautionary
warnings or instructions, by requiring the witness to

27
 take separate trips to the stand in each capacity, or
by ensuring that counsel makes clear when he is
eliciting lay versus expert testimony.

Baptiste, 596 F.3d at 225 n.9.

Given our discussion of appropriate safeguards in Baptiste,

and the district court’s failure in this case to implement any

of those safeguards, we can readily say that the court erred in

not employing methods to help the jurors “understand that they

[could] not give [Underhill’s] lay testimony additional weight

simply because of his dual-role as an expert.” Id. We cannot

say that the district court’s error merits reversal, however.

Under the plain error standard, reversal requires an obvious

error that affects substantial rights. Thomas and White have

failed to demonstrate how the district court’s error rises to

such a level. In their brief, they claim that “[t]he errors

were numerous and the confusion widespread.” However, they fail

to cite any specific examples of this “widespread” confusion.

Accordingly, we are once again constrained to uphold the jury’s

verdict.

II.

Thomas and White next contend that the district court erred

in declining to give a multiple conspiracies jury instruction.

A multiple conspiracies jury instruction is appropriate when

“the proof at trial demonstrates that [the] appellants were

28
involved only in separate conspiracies unrelated to the overall

conspiracy charged in the indictment.” United States v.

Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (quoting United

States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994)) (internal

quotation marks omitted).

The government’s evidence supporting Thomas’s and White’s

conspiracy charges consisted of (1) wiretap evidence showing

contact between Michael Moore 5 and Thomas and between Moore and

White and (2) evidence showing that Moore and Thomas shared

customers—namely, Stokes, Leandre Preston, and Joseph Hensley,

all individuals who were apprehended with Thomas and White.

At the jury charge conference, Thomas and White requested a

multiple conspiracies jury instruction, maintaining that the

government’s evidence proved there were “essentially two

distribution networks” with individual buyers and that the

government made “no connection between the distribution networks

and any of [the] individual buyers.” The district court denied

Thomas and White’s request, and they contend that it erred in

doing so.

“We review [a] district court’s decision to give or refuse

to give a jury instruction for abuse of discretion.” United

5
Michael Moore was charged with White and Thomas but is not
a party to this appeal.

29
States v. Sarwari, 669 F.3d 401, 410–11 (4th Cir. 2012) (quoting

United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009))

(internal quotation marks omitted). We will find refusal to

give an instruction erroneous only if the requested instruction

“(1) was correct, (2) was not substantially covered by the

court’s charge to the jury, and (3) dealt with some point in the

trial so important that the failure to give the requested

instruction seriously impaired the defendant’s ability to

conduct his defense.” United States v. Green, 599 F.3d 360, 378

(4th Cir. 2010) (quoting Passaro, 577 F.3d at 221). Here, we

conclude the district court properly denied Thomas and White’s

request for a multiple conspiracies jury instruction.

Thomas and White maintain that the instruction they

requested was correct because “[t]he government presented no

evidence that [they] had any relationship with each other, or

any acquaintances of alleged co-conspirators in common.” They

admit that the government presented evidence that Stokes

purchased her drugs from both Thomas and Moore and that White

purchased his drugs from Moore, but they aver that such evidence

is insufficient to show that White and Thomas were involved in

the same conspiracy. We are unconvinced.

Thomas and White fail to accord sufficient weight to our

precedent regarding the proof necessary for a conspiracy. A

conspiracy need not “have a discrete, identifiable

30
organizational structure.” United States v. Banks, 10 F.3d

1044, 1054 (4th Cir. 1993). Rather, it can be simply “a

loosely-knit association of members linked only by their mutual

interest in sustaining the overall enterprise of catering to the

ultimate demands of a particular drug consumption market.” Id.

Moreover, “[o]nce it has been shown that a conspiracy exists,

the evidence need only establish a slight connection between the

defendant and the conspiracy to support conviction.” United

States v. Burgos, 94 F.3d 849, 861 (4th Cir. 1996) (alteration

in original) (quoting United States v. Brooks, 957 F.2d 1138,

1147 (4th Cir. 1992)) (internal quotation marks omitted). In

fact, proof of a conspiracy does not even require that a

defendant “know all of his coconspirators.” Id. Such is the

case here. The government may not have outlined the

organizational structure of Thomas and White’s conspiracy, but

it presented evidence sufficient to show that they were, at

minimum, part of a “loosely-knit association of members” that

existed for the purpose of drug trafficking. We therefore

conclude that the district court did not act “arbitrarily or

irrationally” in declining to give the multiple conspiracies

jury instruction that Thomas and White requested.

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 III.

Finally, we address White’s contention that the government

presented insufficient evidence to support his conspiracy

conviction. When we review a trial to determine whether

sufficient evidence supported conviction on a certain charge, we

view the evidence through a lens that favors the government, and

we ask, “Could any reasonable juror have found the defendant

guilty of this charge beyond a reasonable doubt?” See United

States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).

We have reviewed the evidence that the government presented

against White, and we are satisfied that it was sufficient for a

reasonable juror to find White guilty of conspiracy under 21

U.S.C. § 846. White argues that the government “may have proved

that a drug trafficking conspiracy existed, [but] there was no

evidence to support a finding that . . . White knowingly or

voluntarily participated in that conspiracy.” Further, White

contends that the government’s circumstantial evidence of

White’s participation in the sale of drugs was insufficient to

prove his involvement in the conspiracy. We are unpersuaded.

At trial, the government presented evidence showing that on

several occasions, White called Moore to purchase powder cocaine

and crack cocaine. The government also presented evidence

indicating that on April 8, 2010, after White called Moore

requesting cocaine, he met with Moore in a black Nissan and then

32
exited the Nissan and entered a white Dodge. After a “brief

time, approximately a minute or so,” White exited the Dodge and

re-entered the Nissan. “[J]ust a couple of minutes after the

meeting,” law enforcement officers stopped the Dodge and

discovered crack cocaine in the driver’s possession. The

government also presented evidence of several other brief

meetings between White and Moore.

We recognize that such evidence may seem negligible.

Nonetheless, it is sufficient to support a conclusion that White

participated in a conspiracy with Thomas and Moore. And when

enough evidence exists to support a reasonable juror’s

conclusion of guilt, we will not second-guess the verdict.

Accordingly, we again decline to reverse White’s conviction.

IV.

We have reviewed the evidence provided to us in the record,

and we have considered each of Thomas’s and White’s allegations.

Because we ascertain no reversible error, we affirm the jury’s

verdict on all counts.

AFFIRMED

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