In United States v. Perry, No. 16-11358 (Sept. 29, 2021) (Grant, Marcus, Axon (N.D. Ala.)), the Court affirmed the defendants’ convictions and sentences.

Defendants were indicted on numerous charges related to their involvement in a multi-year, multi-state drug distribution organization–namely, conspiracy to possess with intent to distribute in excess of 5kg of cocaine and in excess of 280g of cocaine base.  They proceeded to trial and were found guilty.  Defendant Perry was sentenced to 240 months in prison while Defendant Ragin was sentenced to 180 months in prison.

On appeal, Defendant Perry argued that the district court erroneously admitted the testimony of DEA task force officer Lee because Lee was not properly qualified as an expert, and because his opinion testimony improperly blurred the line between expert and lay witness testimony and drew impermissible inferences for the jury.  Lee was qualified as an expert “in coded drug language and methods of trafficking, as well as the manufacture of crack cocaine from powder cocaine,” and testified extensively as to the meaning of certain words and phrases used in numerous intercepted phone calls that were introduced at trial.

The Court first found that Lee was properly qualified as an expert in interpreting code words for drugs–he had over 19 years of experience in law enforcement and formed his opinions using reliable methods and based on experience, general knowledge, and familiarity with the intercepted communications and their context.  As to Perry’s second objection to Lee’s testimony–that it invaded the province of the jury–the Court, reviewing for plain error, found that while portions of Lee’s testimony were improper–where he crossed the line from interpreting drug language to opining about plain language, speculating, summarizing the evidence, or telling the jury what inferences to draw from the conversation–Perry failed to establish any plain error that affected his substantial rights.  The Court did note, however, that the trial court and prosecutor “should have taken greater care to cabin the case agent’s expert testimony to his areas of expertise and to make clear to the jury in what capacity he was testifying.”  But, the Court also cautioned that “it remains the duty of litigators to object contemporaneously when offending testimony is offered so that the trial court will have the opportunity to exercise its critical gatekeeping function when it matters most.”

Defendant Perry next objected to the admission of a recording of a cell phone call, which included out-of-court statements made by third parties who were not called to testify at trial.  The Court found no abuse of discretion in the admission of this call.

Defendant Perry also objected to 50 additional conversations for the first time on appeal, arguing that it was not necessary for defense counsel to make the same objection over and over again during trial because the trial court had already made its ruling about one of the calls.  The Court disagreed, noting that a defendant is required to raise specific objections to specific questions and specific answers as they were offered.

Defendant Perry also objected to the government’s introduction of Rule 404(b) evidence involving events that fell outside of the charged conspiracy–specifically, the factual basis surrounding Perry’s earlier federal conviction for the distribution of crack cocaine.  The district court allowed the evidence, but to limit its prejudicial impact, directed the parties to omit any reference to Perry having been convicted or having entered a guilty plea.  The Court found no error in the admission of this evidence because, by pleading not guilty, Perry made intent a material issue.

Defendant Ragin argued that the district court should not have considered the drugs and firearms found in his residence when officers arrested him as “relevant conduct” during sentencing because his arrest fell outside the timeline of the conspiracy, and because the details of his arrest were admitted only as 404(b) evidence at trial.  The district court used the drugs and firearms found during Ragin’s arrest to calculate his total offense level.  The Court found no error in the district court’s consideration of the drugs and firearms found in Ragin’s residence because the district court found that the drugs and firearms were part of a single course of conduct and were not an isolated, unrelated event.

Defendant Ragin also argued that the district court erred by not sua sponte granting him a two-level minor-role reduction.  Reviewing for plain error, the Court found no error because it is insufficient to point to the broader criminal scheme when the district court determines a sentence by zeroing in on a defendant’s actual conduct alone.

Of note, the Court only considered the sentencing issues raised in Ragin’s brief, finding his adoption of the arguments raised in his co-defendants’ brief to be inadequate–it did not comply with the requirements of 11th Cir. R. 28-1(f).