                                                                               FILED
                            NOT FOR PUBLICATION                                MAY 19 2015

                                                                            MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50552

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00241-AJB-1

  v.
                                                 MEMORANDUM*
JOSE MARIANO CHAVEZ, aka Pelucas,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                              Submitted May 5, 2015**
                                Pasadena, California

Before: PREGERSON, TALLMAN, and NGUYEN, Circuit Judges.

       Jose Mariano Chavez appeals his conviction for conspiracy to distribute heroin

and marijuana in violation of 21 U.S.C. §§ 841 and 846, arguing that the district court




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
improperly admitted lay opinion testimony from FBI Special Agent Mathew Zeman.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       “A pretrial motion in limine preserves for appeal the issue of admissibility of

that evidence if the substance of the objection has been thoroughly explored during

the hearing and the district court’s ruling permitting introduction of evidence was

explicit and definitive.” United States v. Lui, 941 F.2d 844, 846 (9th Cir. 1991).

Because the pretrial colloquy concerning the Government’s Motion in Limine to

“Admit Lay Opinion Testimony” amounts to a definitive objection to its admissibility

by Chavez that was subject to a thorough examination and ruled upon in an explicit

manner, we review Chavez’s claim under the abuse of discretion standard. See id.

       So long as the requirements of Federal Rule of Evidence 701 are met, a law

enforcement officer may provide lay opinion testimony—gleaned from his

investigation—about his understanding of the meaning of a declarant’s vague or

ambiguous statements collected from intercepted audio recordings, even if the officer

interprets conversations in which he did not participate. United States v. Freeman,

498 F.3d 893, 902, 904–05 (9th Cir. 2007). Such testimony is permissible if it is

based on the officer’s “direct perception of . . . intercepted conversations . . . and other

facts he learned during the investigation.” Id. at 904–05; see also United States v.

Gadson, 763 F.3d 1189, 1209 (9th Cir. 2014) (“[A]n investigator who has


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accumulated months or even years of experience with the events, places, and

individuals involved in an investigation necessarily draws on that knowledge when

testifying; indeed, it is those out-of-court experiences that make the witness’s

testimony helpful to the jury.”).

      At trial, Special Agent Zeman met the criteria for offering lay opinion

testimony about the meaning of terms and phrases employed in recorded phone calls

by Chavez and his co-defendants. First, Zeman’s testimony was rationally based on

his perception of over 5,000 calls that he listened to during many months of his drug

trafficking investigation of Chavez and other related defendants. Based on that fact,

as well as Zeman’s significant involvement in the investigation and participation in

controlled drug purchases, the Government laid sufficient foundation to establish that

Zeman had become familiar with the coded terms used by Chavez.

      Second, Zeman’s interpretation of coded words was helpful to the jury. Even

Chavez concedes that “had [Zeman’s] testimony not been allowed in, then a jury

would not have known the type of drugs talked about . . . .” Finally, Zeman’s

testimony was not “based on scientific, technical, or otherwise specialized knowledge

within the scope of Rule 702.” See Fed. R. Evid. 701(c). Rather, his testimony was

based primarily on the Special Agent’s perception gained from listening to thousands

of recorded calls.


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      We conclude that the district court did not abuse its discretion in permitting

Zeman to offer lay opinion testimony about the meaning of ambiguous terms in

recorded calls.

      AFFIRMED.




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