     Case: 14-10361   Document: 00513065146        Page: 1   Date Filed: 06/03/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-10361               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
UNITED STATES OF AMERICA,                                          June 3, 2015
                                                                 Lyle W. Cayce
             Plaintiff - Appellee                                     Clerk

v.

REYNALDO MACEDO-FLORES,

             Defendant - Appellant




                Appeals from the United States District Court
                     for the Northern District of Texas


Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Reynaldo Macedo-Flores (Macedo) appeals his convictions for possession
with intent to distribute 500 grams or more of cocaine and methamphetamines,
obstruction of justice, and two counts of perjury. He challenges the district
court’s denial of his requested sentencing entrapment jury instruction, the
sufficiency of the evidence regarding the materiality of his false statement
supporting the perjury convictions, and the district court’s admission of a lead
police investigator’s lay opinion testimony regarding Macedo’s use of certain
coded words. We AFFIRM.
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                                   No. 14-10361
                                        I.
      In January 2012, FBI Special Agent Miguel Torres (Agent Torres) and
Dallas Police Department Detective Byron Boston (Detective Boston) obtained
information from a cooperating defendant in a related case identifying Macedo
as an alternate source of supply for methamphetamine and cocaine. Detective
Boston, working undercover, began buying drugs from Macedo in February
2012. Detective Boston continued to purchase drugs from, and negotiate large
drug purchases with, Macedo until July 16, 2013, when Macedo was arrested.
Throughout the investigation, Detective Boston wore wire taps and relied on
pole cameras, which recorded audio and video footage of many of the
transactions between him and Macedo. After a few transactions with Macedo,
Detective Boston indicated to Macedo that he wanted a half-kilogram of
cocaine, and Macedo confirmed that he had access to that quantity and could
deliver it.
      In January 2013, when Detective Boston was still unable to determine
Macedo’s      source   for   methamphetamine,     he   ordered   four   ounces   of
methamphetamine ice from Macedo in order to discuss a large cocaine order.
Macedo told Detective Boston that his uncle had a “brick” of cocaine (1
kilogram) for $31,000.       Macedo also told Detective Boston that he had a
customer from San Angelo who purchased 32 ounces of methamphetamine
weekly, stating that he was selling “life” quantities, meaning he would get a
substantial prison sentence if caught with the quantities he was distributing.
Based on this conversation and other information from the investigation,
Detective Boston was able to obtain a warrant to tap Macedo’s phone.
      Detective Boston continued to discuss transactions with Macedo, hoping
their interactions would trigger conversations between Macedo and his
supplier or suppliers. Detective Boston then inquired about purchasing a half-
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                                    No. 14-10361
kilogram of cocaine, but Macedo refused and said he wanted to sell an entire
kilogram. Investigators began listening to calls between Macedo and Jose
Madrigal (Macedo’s supplier for methamphetamine) and heard references to
“la doña” and “la señora,” the Spanish terms for “lady.”        For example, Macedo
directed Madrigal to “drop the sweets”—referring to methamphetamine—“over
there with the lady.” In another call recorded on June 21, 2013, after Detective
Boston had purchased methamphetamine from Macedo, Macedo told Madrigal
that he wanted to take out $100 to give to “the lady,” and Madrigal approved.
Based on the fact that Macedo’s mother had assisted in that transaction, 1
Detective Boston believed Macedo was asking to compensate Macedo’s mother.
      During a transaction that occurred on April 24, 2013, Macedo instructed
Detective Boston to retrieve the drugs from a particular residence. 2 When
Detective Boston arrived at the residence, a Hispanic female, who introduced
herself as Berta, exited the rear of the residence.            Detective Boston later
learned that Berta (Austreberta Macedo) was Macedo’s mother. Macedo’s
mother motioned for Detective Boston to remain quiet while they entered a
shed at the rear of the residence, where she retrieved the methamphetamine
ice from a cabinet drawer in the front portion of the shed. After receiving the
drugs, Detective Boston conducted a field test to make sure the drugs were not
fake, and Macedo’s mother counted the money given in payment.
      Macedo,     Macedo’s      mother,    and    eight    other   individuals     were
subsequently indicted for multiple drug-trafficking offenses. Macedo’s mother
was tried individually in September 2013. During her trial, she called Macedo



      1  On April 24, 2013, Macedo negotiated the purchase of 4 ounces of methamphetamine
with Detective Boston, but Macedo’s mother completed the transaction by retrieving the
drugs out of a cabinet in a shed behind her house.
       2 This transaction was captured on video.

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as a witness. Macedo admitted to being a drug dealer “under pressure” but
denied that his mother was a drug dealer. He said that she never conspired
with him to sell drugs and denied that he had ever told her that the package
she delivered to Detective Boston on April 24, 2013, contained drugs. Macedo
testified that he told his mother that he needed her to deliver a package to a
man and receive money from him.            Macedo also testified that when he
referenced “the lady” in the intercepted phone calls, he was not referring to his
mother.   Instead, he claimed that “la doña” and “la señora” were coded
references to the house where his mother lived. Macedo also claimed that a
reference to “la señora” in a different call—in which he informed Madrigal that
“la señora” would be waiting for him—was a coded reference to a drawer or a
box in the detached shed where Madrigal could leave the drugs. He admitted,
however, that when he spoke to Madrigal about taking $100 for “the lady,” he
was referring to his mother.
                                       II.
      Macedo was charged in a superseding indictment with one count of
conspiracy to possess with intent to distribute more than 500 grams of cocaine,
one count of conspiracy to possess with intent to distribute more than 500
grams of methamphetamine, one count of obstruction of justice, and two counts
of perjury. The obstruction of justice and two perjury counts arose out of
Macedo’s testimony during his mother’s trial. The indictment alleged that “[i]t
was a material matter to [her] trial to determine whether or not [Macedo’s
mother] had knowingly participated in the conspiracy to distribute
methamphetamine and aided and abetted the possession of methamphetamine
with intent to distribute.” The first count of perjury alleged that Macedo
testified falsely when he stated that he directed his mother to give him the
proceeds of the April 24, 2013, drug sale, and he gave them to Madrigal. The
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                                No. 14-10361
second count of perjury alleged that Macedo testified falsely when he claimed
that, by using the terms “la doña” and “la señora,” he was referring to
inanimate objects and not his mother.
      At Macedo’s trial, Detective Boston recounted the investigation into the
drug conspiracy and the several transactions he participated in as part of that
investigation. During direct examination, Detective Boston explained that a
primary goal of the investigation was to identify the highest-level sources
possible.   On cross-examination, Macedo’s attorney inquired about when
investigators learned about Macedo’s direct sources and when they developed
sufficient evidence to bring a case against him. He also questioned Detective
Boston to point out that Detective Boston set the quantities transacted.
Detective Boston then confirmed that, although he believed that he had
reached the highest source on the cocaine side of the investigation on July 2,
2013, he contacted Macedo another time to purchase cocaine.            However,
Detective Boston also testified that he continued transacting cocaine purchases
from Macedo because although he had found one source, he had learned that
Macedo had another source of supply for cocaine when his uncle, one of
Macedo’s cocaine suppliers, had none for sale.
      The Government introduced several intercepted phone calls, and Agent
Torres, the supervisor of the entire investigation, noted that Macedo referred
to his mother as “la doña” or “la señora,” Spanish terms that typically mean an
older, respected woman. Macedo objected on the basis of “speculation” when
Agent Torres asked how he knew the term “la doña” was not code for something
other than a woman. The court conditionally overruled the objection, and
Agent Torres explained that, based on the information learned during the
investigation, he believed Macedo was referring to his mother. When asked to
explain his understanding of what Macedo meant when he asked Madrigal to
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                                No. 14-10361
take out $100 to give to “the lady,” Agent Torres explained that he believed
Macedo was talking about giving money to his mother. This explanation was
also made over a speculation objection.
      Agent Torres also testified about recorded conversations between
Macedo and his sister, Reyna, while Macedo was in pretrial detention. Reyna
implored Macedo to do whatever he could to help their mother and to “make
your statements” to help her. She told Macedo that “[y]ou have to say that it’s
all yours.”
      Jose Madrigal also testified at Macedo’s trial.    Among other things,
Madrigal confirmed that he delivered the methamphetamine for the April 24,
2013, sale to Macedo’s mother and picked up the proceeds from her. He also
listened to recorded calls and testified that he understood Macedo to be
referring to his mother when he used the terms “la doña” or “la señora.”
Madrigal also confirmed that he understood Macedo to be talking about his
mother when he asked whether he could take $100 from the drug proceeds.
      Prior to trial, Macedo requested that the jury be instructed on
“sentencing entrapment.” He sought the following instruction:

      Defendant Reynaldo Macedo-Flores also argues that he was
      specifically entrapped as to the quantity of the drugs involved in
      the government’s alleged conspiracy. You must decide whether
      Defendant Macedo-Flores had the intent to distribute the charged
      quantity of the controlled substance, which the conspiracy counts
      is at least 500 grams of cocaine and 500 grams of
      methamphetamine. You must also decide whether the government
      inflated the quantity of drugs to make Macedo-Flores’s
      punishment more severe. Finally, if you find that Defendant
      Macedo-Flores was specifically entrapped as to the quantity of
      drugs involved, you must decide what quantity (and specific count
      in the indictment) was not a result of that entrapment.



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                                 No. 14-10361
During the jury charge conference at trial, Macedo argued that he was entitled
to his requested sentencing entrapment instruction, relying on unpublished
Ninth Circuit precedent recognizing the defense. See United States v. Allen,
242 F. App’x 425 (9th Cir. 2007).     According to Macedo’s attorney, Allen
recognized that sentencing entrapment was a viable defense where a
defendant proves that either: (a) the Government improperly influenced the
amount of drugs involved in the conspiracy, or (b) the Government led the
defendant to sell more drugs than he was predisposed to sell. Macedo’s counsel
acknowledged that “I don’t think we can argue that second prong, Mr. Macedo
was predisposed to sell those quantities.” He added, however, that “we do
think we have ample evidence in the record that the Government inflated the
amount of drugs that . . . Mr. Macedo is responsible for.” He contended that
certain sales were transacted “for no reason or purpose” and that “the only
reason [the Government transacted additional amounts] was to jack up
[Macedo’s] potential sentence and to jack up, I guess, the threshold.” After
“wrestling” with the issue and considering relevant authority, the court
declined to give the requested instruction.
      The jury convicted Macedo on all counts.       At sentencing, the court
determined that Macedo’s Guidelines range was a life term, but it varied
downward to 300 months.        In doing so, the court specifically addressed
Macedo’s objection based on the sentencing enhancement:
      I believe that based upon the evidence presented at the trial, the
      law enforcement methods used in this case were legitimate and in
      an attempt to determine the scope of the conspiracy, find other
      conspirators and other sources of supplies, and that it was
      appropriate to do so.
The court considered the Guidelines but stated that its chosen non-guidelines
sentence was appropriate after considering the 18 U.S.C. § 3553(a) factors.

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                                       No. 14-10361
Therefore, the court remarked that it was the same sentence it would have
imposed even if it was incorrect on any of the Guidelines objections Macedo
filed.
         Macedo now makes three challenges to his conviction and sentence. We
address each challenge in turn.
                                             III.
                                              A.
         First, Macedo argues that the evidence warranted a sentencing
entrapment defense jury instruction as to both drug trafficking counts because
a “reasonable jury could have determined that [the undercover agent’s] cocaine
purchases in and after March 2013 were undertaken to inflate” the drug
quantity. Because this circuit does not recognize such a defense nor does
Macedo prove true entrapment, we AFFIRM the district court’s denial to
instruct the jury on sentencing entrapment.
         We review the district court’s refusal to give a requested jury instruction
for an abuse of discretion. United States v. Jones, 132 F.3d 232, 242 (5th Cir.
1998) (citation omitted). This court will only reverse the district court for
refusal to give a requested instruction “if the proposed instruction was (1)
substantively correct, (2) not substantively covered in the jury charge, and (3)
concerned an important issue in the trial, such that failure to give the
requested instruction seriously impaired the presentation of a defense.” Id.
         As noted by both parties, this court has never recognized sentencing
entrapment as a defense, 3 but we have consistently noted that, were we to


         3Despite several sister circuits’ adoption of this defense, this circuit has yet to
explicitly recognize the defense of sentence entrapment. See Stephens, 717 F.3d 440, 446 (5th
Cir. 2013) (“We have never recognized sentencing entrapment as a defense.”); see also United
States v. Alvarez, 575 F. App’x 522, 528 (5th Cir. 2014) (“[T]his court does not recognize . . .
‘sentencing entrapment’ in any context.”); United States v. Jones, 664 F.3d 966, 984 (5th Cir.
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accept the defense, it would only be cognizable in cases involving “true
entrapment,” United States v. Tremelling, 43 F.3d 148, 152 (5th Cir. 1995)
(citation omitted), or where there is proof of “overbearing and outrageous
conduct” on the Government’s part. Stephens, 717 F.3d at 446.
       In order to establish the defense of true entrapment, “a defendant must
make a prima facie showing of (1) his lack of disposition to commit the offense
and (2) some governmental involvement and inducement more substantial
than simply providing an opportunity to commit the offense.” Id. at 444
(internal quotation marks and citation omitted); see also United States v.
Bradfield, 113 F.3d 515, 521 (5th Cir. 1997) (“The critical determination in an
entrapment defense is whether criminal intent originated with the defendant
or with the government agents.” (citations omitted)).                   In examining a
defendant’s predisposition to commit the offense, the court is to look at, inter
alia, (1) the defendant’s “eagerness to participate in the transaction,” and (2)
the defendant’s “ready response to the government’s inducement offer.” United
States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997) (internal quotation marks
and citation omitted). Further, “[p]redisposition . . . focuses upon whether the
defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who
readily availed himself of the opportunity to perpetrate the crime.” Mathews v.
United States, 485 U.S. 58, 63 (1988) (quoting Sherman v. United States, 356
U.S. 369, 372 (1958)). This court has previously held that “[a] lack of
predisposition can appear from, for example, lack of prior interest or



2011) (“[T]his Court apparently has not expressly determined whether we have accepted the
concept of sentencing factor manipulation.”); United States v. Snow, 309 F.3d 294, 295 (5th
Cir. 2002) (“This court has not had to determine whether sentencing entrapment is a
cognizable defense to a sentence.”). Almost all of our sister circuits have opined about both
sentencing entrapment and sentencing factor manipulating, reaching varied conclusions. See
United States v. Sed, 601 F.3d 224, 229–30 (3d Cir. 2010) (collecting cases).
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experience related to the crime, significant hesitation or unwillingness, or
attempts to return discussion to lawful conduct.” United States v. Theagene,
565 F.3d 911, 920 (5th Cir. 2009). Where a defendant “promptly avail[s]
himself of [a] criminal opportunity, it is unlikely that his entrapment defense
. . . [warrants] a jury instruction.” Jacobson, 503 U.S. 540, 550 (1992).
      Only after the defendant has made a prima facie showing of entrapment
by showing both elements—lack of predisposition and governmental
inducement—is the defendant entitled to an entrapment instruction by the
court. See Stephens, 717 F.3d at 444. If the defendant can make this prima
facie showing, he shifts the burden “to the government to prove beyond a
reasonable doubt that the defendant was disposed to commit the offense before
the government first approached him.” Theagene, 565 F.3d at 918.
      Macedo has failed to make a prima facie showing of true entrapment,
and as such, the district court did not abuse its discretion by denying his
requested jury instruction. First, Macedo has failed to prove that he was not
already predisposed to selling drugs prior to his interactions with Detective
Boston. In a similar case involving a paid informant, this court held that a
defendant who “readily agreed to arrange a drug deal” and “demonstrated
knowledge of his role as a broker during the drug transaction” was not entitled
to an entrapment defense. Chavez, 119 F.3d at 345–46; see also United States
v. Gilmore, 590 F. App’x 390, 395–96 (5th Cir. 2014) (looking to the attitude of
the defendant and stating that “[e]vidence of predisposition can include . . .
active, enthusiastic participation or demonstrated expertise in the criminal
endeavor.”) In the instant case, there is more than enough evidence that a jury
could reasonably infer that Macedo was predisposed to selling drugs and to
selling large quantities of drugs. Not only did Macedo’s counsel concede that
“Macedo was predisposed to sell those quantities,” but Macedo never hesitated
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                                 No. 14-10361
when negotiating the drug purchases with Detective Boston, no matter the
quantity. See Gilmore, 590 F. App’x at 396.
      Second, Macedo has also failed to show governmental involvement and
inducement more substantial than simply providing an opportunity to commit
the offense. See Bradfield, 113 F.3d at 521. “Inducement . . . appear[s] when
government agents persist in encouraging criminality after a defendant rejects
overtures.” Theagene, 565 F.3d at 922. In Bradfield, police paid a confidential
informant a contingency fee to successfully induce Bradfield to participate in a
drug deal. 113 F.3d at 518, 523. The informant made “approximately eighteen
calls during April 1992, in an unrelenting campaign to entice Bradfield to do a
drug deal.” Id. at 523. In that case, this court concluded that there was “a
plethora of evidence of government inducement[,]” which was “more than
sufficient to establish a prima facie showing [of inducement].” Id. at 523–24.
In Jacobson, government agents repeatedly sent the defendant personalized
correspondence and fake advertisements to encourage him to order child
pornography materials. Jacobson, 503 U.S. at 546–47. Initially the defendant
only expressed interest in adult pornography, but after two years of the
government’s propositions, he placed an order for child pornography. The
Government argued that he was predisposed to commit the crime, but “[did]
not dispute that it induced [defendant] to commit the crime.” Id. at 549 n.2.
      In the instant case, unlike the defendants in Bradfield or Jacobson,
Macedo was not subject to the Government’s substantial inducement. To the
contrary, Detective Boston simply initiated routine drug deals with Macedo,
who, without hesitation, consummated several purchases in varying amounts.
Further, Detective Boston never coaxed or persuaded Macedo into these drug
deals; Macedo was a willing participant. Cf. Bradfield, 113 F.3d at 521, 523–
24. Macedo argues that although he might have been predisposed to selling
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large amounts of drugs, the cocaine purchases in and after March 2013 were
undertaken to inflate the scope of the conspiracy in terms of drug quantity.
The Government concedes that Macedo’s attorney did in fact show that “(1) the
lead agent was generally aware that a defendant who was involved with a
higher volume of drugs is subject to a higher sentence, and (2) agents continued
to make purchases through Macedo even after they could have arrested him
and after they had identified his immediate suppliers.” However, the law
enforcement officers continued to conduct transactions with Macedo for the
purposes of identifying his suppliers, triggering activity with suppliers further
upstream, developing probable cause for other investigative measures, or
maintaining the detective’s relationship with Macedo. 4
      There is instead “a plethora of evidence” refuting Macedo’s arguments of
government inducement, not only to sell the drugs but to sell the greater
quantities. Cf. Bradfield, 113 F.3d at 521, 523–24. Macedo has not proven
that the Government induced him to sell drugs generally, nor has he proven
that the Government induced him to sell larger quantities of drugs than what
he was already predisposed to sell. Thus, the district court did not abuse its
discretion in denying Macedo’s requested sentence entrapment jury
instruction.
                                         B.
      Second, Macedo argues that although the Government introduced
adequate evidence of the falsity of his testimony during his mother’s trial, it
made little or no effort to show its materiality. We disagree.




      4  Macedo was the Government’s only contact in the conspiracy. In fact, when the
Government saw an opportunity to bypass Macedo and possibly deal directly with his
supplier, their effort to seize on that opportunity was unsuccessful.
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                                  No. 14-10361
         When weighing the sufficiency of the evidence, this court “reviews the
record to determine whether, considering the evidence and all reasonable
inferences in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en
banc).
         Perjury is defined as “knowingly mak[ing] any false material
declaration” to any court or grand jury. 18 U.S.C. § 1623(a). The declaration
must be “material to the point in question.” Id. Materiality under § 1623
requires only that the defendant’s statements had “a natural tendency to
influence, or [were] capable of influencing, the decision of the decisionmaking
body to which it is addressed.” United States v. Brown, 459 F.3d 509, 529 (5th
Cir. 2006) (internal quotation marks and citations omitted). “The Government
does not have to demonstrate that the grand jury was actually hindered in any
way by the falsehood.” Id. (alteration in original). If the false statement was
capable of influencing the jury, it is material. See United States v. Jimenez,
593 F.3d 391, 400 (5th Cir. 2010).      Further, “the statements need not be
material to any [p]articular issue but may be material to any proper matter of
inquiry.” United States v. Cuesta, 597 F.2d 903, 921 (5th Cir. 1979) (citing
United States v. Abrams, 568 F.2d 411, 420 (5th Cir. 1978)).
         Count Four of the superseding indictment charged Macedo with
committing perjury during his mother’s trial. That count specifically alleged
that Macedo’s mother’s intent—i.e., whether she knowingly participated in the
conspiracy—was a material issue and that Macedo testified falsely when he
said that he received the proceeds from a methamphetamine sale from his
mother and gave it to his supplier. In truth, Macedo’s mother gave the money
directly to Madrigal, the meth supplier, after her transaction with Detective
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                                 No. 14-10361
Boston. Macedo concedes that the Government proved that this testimony in
his mother’s trial was false. However, he argues that this evidence fails to
support his perjury conviction because the Government did not instruct
Macedo’s jury that the prior false testimony was material in his mother’s trial.
      Macedo cites to United States v. Damato, 554 F.2d 1371 (5th Cir. 1977),
a case where the Government introduced ample evidence of the falsity of the
defendant’s testimony during a suppression hearing. Id. at 1372. Because the
defendant’s false testimony was “only a small portion of the entire record made
at the hearing and [did] not reflect the issues that the motions to suppress
raised,” this court held that the Government’s proof of materiality was
insufficient. Id. at 1373. More specifically, the court held that the record
before the trier of fact must do more than “[hint] at the relationship between
[the defendant’s] statements and the [prior proceeding].” Id. at 1372. Macedo’s
reliance on Damato is misplaced. In that case, the materiality of the false
testimony was inadequate because the Government never informed the jury on
what issues were raised by the suppression motions. Id. at 1373. Thus, even
if the jury could find that the defendant’s testimony was false, it did not know
what issues were before the court weighing the suppression motion and
therefore had no way of knowing how the false testimony related to those
issues.
      By contrast, when a defendant’s false statements related to whether he
“had knowledge of” certain aspects of the investigation and criminal activity
and the jury was aware of those issues, this court held that the false statements
were material. Cuesta, 597 F.2d at 921. The defendant in Cuesta testified that
he had never told a co-defendant that someone would kill the victim for being
a government informant and implicating the defendant in the criminal
activity. Id. at 910–11. However, the Government had proof of the falsity of
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                                No. 14-10361
the statement from a taped conversation between the co-defendants.           Id.
Because the false statement was “capable of influencing the [] jury” as to
whether the defendant had knowledge of the illegal activities, this court held
that the statement was material. Id.
      The instant case is more analogous to Cuesta, as the jury in Macedo’s
trial was well aware that the primary issue in his mother’s trial was whether
she was a knowing participant in the drug conspiracy. See id. His false
testimony on the record—that his mother never conspired with him to sell
drugs and that he never told her that the package she delivered to Detective
Boston on April 24, 2013, contained drugs—did not just “hint at the
relationship” between his statements and the issues before his mother’s jury.
See Damato, 554 F.2d at 1372. Instead, Macedo’s false testimony was directly
related to the critical issue of whether his mother was a knowing participant
in the drug transactions, and the jury was well aware of that. See Cuesta, 597
F.2d at 921. Thus, it is almost without question that this false testimony was
capable of influencing the jury. See Jimenez, 593 F.3d at 400.
      As such, viewing the evidence in the light most favorable to the
Government, there was sufficient evidence that Macedo’s false statements
were material to the issue of his mother’s knowing participation in the drug
conspiracy.
                                       C.
      Third, Macedo argues that the Government agent’s lay opinion
testimony regarding the meaning of certain coded words should not have been
admitted because the agent possessed no special familiarity with the meaning
of the recorded language nor was he was a participant in the recorded
conversations at issue. We disagree.


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                                  No. 14-10361
      We review the district court’s evidentiary rulings for abuse of discretion,
subject to a harmless error analysis. United States v. Jackson, 636 F.3d 687,
692 (5th Cir. 2011). A reversal is not warranted unless the defendant shows
“that the district court’s ruling caused him substantial prejudice.” United
States v. El-Mezain, 664 F.3d 467, 494 (5th Cir. 2011) (internal quotation
marks and citation omitted), as revised (Dec. 27, 2011); see Fed. R. Evid. 103(a).
      Lay opinion testimony is limited to the witness’s opinion and must be:
“(a) rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed. R. Evid. 701; see also United States v. Akins, 746 F.3d
590, 598–99 (5th Cir. 2014). Further, “[t]his Court has recognized that in the
context of drug conspiracies, [d]rug traffickers’ jargon is . . . a fit subject for
expert testimony. [However,] we have recognized that testimony about the
meaning of drug code words can be within the proper ambit of a lay witness
with extensive involvement in the underlying investigation.” Akins, 746 F.3d
at 599 (5th Cir. 2014) (internal quotation marks and citation omitted, and
alterations in original).
      Several cases in this circuit have addressed similar factual scenarios
where an agent in a drug conspiracy investigation testified as to his
understanding of the meaning of slang or code words used in wiretapped
conversations. See Akins, 746 F.3d at 598–600; El–Mezain, 664 F.3d at 514;
United States v. Miranda, 248 F.3d 434, 441 (5th Cir. 2001). In Akins, the lead
investigator on a drug conspiracy investigation testified at trial as a lay opinion
witness about “his understanding of the meanings of various code words used
in recorded wiretapped conversations.” 746 F.3d at 597. He testified that the
meanings he ascribed to the code words were gleaned from “the course of the
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                                 No. 14-10361
investigation as well as his career experience.” Id. This court held that the
district court did not abuse its discretion in permitting the testimony. Id. at
599–600. It further held that “[t]o the extent that certain portions of [the
investigator’s] testimony . . . crossed the line into drawing exclusively on his
expertise, it was cumulative of other testimony [in the record] and therefore
harmless.” Id. at 600.
      Similarly in El–Mezain, two agents were extensively involved in the
investigation of a conspiracy and testified to their understanding of the events
in that case. 664 F.3d at 514. This court held that “[t]estimony need not be
excluded as improper lay opinion, even if some specialized knowledge on the
part of the agents was required, if it was based on first-hand observations in a
specific investigation.” Id. Also, in Miranda, the Appellant claimed that an
FBI agent, who had not been designated as an expert witness, testified to the
meanings of various code words heard on intercepted phone calls and thereby
“‘crossed the line’ from lay to expert opinion testimony.” 248 F.3d at 441
(internal citation omitted). In rejecting that argument, this court again held
that the agent’s testimony was permissible under Federal Rule of Evidence 701
because the agent’s “extensive participation in the investigation of this
conspiracy, including surveillance . . . and the monitoring and translating of
intercepted telephone conversations, allowed him to form opinions concerning
the meaning of certain code words used in this drug ring based on his personal
perceptions.” Id. at 441.
      Although Agent Torres’s experience as a law enforcement officer may
have allowed him to testify as an expert, our case law also allows him to testify
to his lay opinion regarding the meaning of code words used in an investigation
for which he is the lead investigator. See Akin, 746 F.3d at 598–600; El-
Mezain, 664 F.3d at 514; Miranda, 248 F.3d at 441. Analogous to the agents
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                                 No. 14-10361
in the case law, Agent Torres was the lead investigator on this drug conspiracy.
A native Spanish speaker, Agent Torres oversaw “the entire investigation from
beginning to end” and testified that his duties “in the case [included] listening
and just being up-to-date on all the wire interception phone calls.” His opinion
about what Macedo meant when he used the terms “la doña” and “la señora”—
both Spanish terms for “lady”—was based on his substantial involvement in
the investigation of the drug conspiracy. The district court permitted Agent
Torres’s testimony based on his training and experience generally, but Agent
Torres clarified that his opinion was based on his experience in this particular
investigation.
      Attempting to distinguish this case, Macedo cites to United States v.
Ebron, 683 F.3d 105, 137 (5th Cir. 2012), which held that “[a] lay opinion must
be based on personal perception . . . and must be helpful to the jury.” He argues
that Agent Torres’s testimony was not helpful because Torres “ha[d] no more
insight into [the] meaning [of the code words] than the jury.” He also argues
that this court has never allowed an officer to testify that language was not
coded. First, Ebron actually bolsters the Government’s position, as Agent
Torres’s perceptions of the meaning of the Spanish words for lady likely help
the jury to decide whether Macedo’s mother was a participant in the drug
conspiracy. See 683 F.3d at 137. Second, Agent Torres had much more insight
into the meaning of the code words than did the jury. Not only is he a native
Spanish speaker, but he oversaw the entire investigation and listened to all of
the intercepted phone calls. This gives him a unique perspective and insight
into the conspiracy from which the jury could benefit. Thus, his opinion was
likely helpful to the jury’s understanding of the case.        Third, Macedo’s
argument that this court has never allowed an officer to testify that language
was not coded is a conflated statement of the issue. Whether the agent testifies
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                                No. 14-10361
to the true meaning of coded words or instead testifies that such “coded” words
are to be given their ordinary meaning makes no difference. Either way, the
case law forecloses the argument. As such, the district court did not abuse its
discretion in admitting Agent Torres’s lay opinion testimony regarding the
meaning of “la doña” and “la señora.”
                                        D.
      Further, any error by the district court was harmless. Agent Torres’s
testimony, like that of the agent in Akins, did not have a substantial and
injurious effect on the jury’s verdict, as there was ample other testimony
translating the terms as referring to an older, respected woman—more
specifically, Macedo’s mother—from an FBI linguist, Detective Boston,
Madrigal (a co-defendant), and even Macedo himself. See Akins, 746 F.3d at
599–600 (holding that the admission of an agent’s testimony was harmless in
light of its consistency with testimony by other agents and a co-conspirator).
Thus, the admission of Agent Torres’s opinion was also harmless, and we
AFFIRM.
                                        IV.
      We AFFIRM the district court.




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