                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 01 2010

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

UNITED STATES OF AMERICA,                        No. 09-10290

              Plaintiff - Appellee,              D.C. No. 5:05-cr-00723-JW-10

  v.
                                                 MEMORANDUM*
MAN NEI LUI,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-10408

              Plaintiff - Appellee,              D.C. No. 5:05-cr-00723-JW-1

  v.

PONG LIN LIU,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Northern District of California
                     James Ware, District Judge, Presiding

                      Argued and Submitted October 4, 2010
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: BERZON and CALLAHAN, Circuit Judges, and WOLLE, Senior District
Judge.**

      We affirm the verdicts against Man Lui and Pong Liu and remand to the

district court to correct the clerical error in Man Lui’s judgment.

Agent Robinson’s Testimony

      Any error regarding Agent Robinson’s testimony was harmless.

      Both Man Lui and Pong Liu objected before trial to Robinson testifying as

both a lay and expert witness. The district court’s decision to allow Robinson to

testify in these dual roles was not an abuse of discretion because the jurors were

aware of the witness’s dual roles. See United States v. Freeman, 498 F.3d 893, 904

(9th Cir. 2000) (holding that the risk of error in allowing a case agent to testify as

both a lay and expert witness is sufficiently reduced if jurors are made aware of the

circumstances). While the distinction between Robinson’s two roles would have

been clearer had the district court separated Robinson’s testimony into two phases,

see United States v. Anchrum, 590 F.3d 795, 804 (9th Cir. 2009), it was generally

apparent when Robinson was testifying as an expert, because the prosecutor would

preface his questions with the phrase “based on your training and experience.”



       **
             The Honorable Charles R. Wolle, Senior United States District Judge
for the Southern District of Iowa, sitting by designation.

                                           2
Moreover, the district court instructed the jury to distinguish between Robinson’s

two roles, and both Man Lui and Pong Liu explored the “two hats” issue on cross

examination. See United States v. Reed, 557 F.3d 900, 922 n.16 (9th Cir. 2009)

(noting that there was little risk of prejudicial juror confusion when defendants

were able to conduct a full cross-examination of a detective testifying as both a lay

and expert witness).

      There were questionable aspects to Agent Robinson’s testimony, but they

concern evidentiary issues that do not trace to the “two hats” issue, and about

which Man Lui never raised objections and Pong Liu only rarely objected. At

times, Robinson impermissibly speculated about the contents of Pong Liu’s golf

bag. Pong Liu raised a belated objection to the testimony regarding the golf bag,

which prompted the district court to admonish the jury that Robinson’s testimony

on the subject was an opinion, not eyewitness testimony. While the district court

erred in admitting Robinson’s speculations in the guise of expert opinion

testimony, the error was harmless, given that on cross-examination, it became clear

that Robinson never found any cocaine in the golf bag.

      Substantial portions of Robinson’s testimony also amounted to repetitive

summaries of telephone calls, videos, and charts that had been presented to the

jury. Such cumulative testimony was likely improper. See Freeman, 498 F.3d at


                                          3
905. But it was not reversible plain error for the district court to admit it, as it did

not seriously affect the fairness of the proceedings, given the wiretap and

surveillance evidence. Pong Liu objected to this type of testimony on one occasion

and the district court erred in admitting the testimony. However, the error was

harmless given the substantial independent evidence against Pong Liu. See id. at

906.

       Man Lui raised Confrontation Clause objections to Robinson’s summaries of

specific calls. There is no support, however, for the proposition that by

summarizing the contents of admissible, non-testimonial statements, a witness

converts the calls into testimonial statements in violation of the Confrontation

Clause. Again, the summaries were likely inadmissible, but not for Confrontation

Clause reasons.

       Finally, with eleven years as a DEA agent, eight years working on large-

scale drug conspiracies, and experience working on more than 150 drug

investigations, Agent Robinson was qualified to be an expert in the modus

operandi of drug traffickers. Man Lui did not object at trial to the district court’s

qualification of Robinson as an expert, and it was not plain error for the court to

fail to make an explicit reliability determination regarding Robinson’s

methodology. See United States v. Lopez-Martinez, 543 F.3d 509, 514-15 (9th Cir.


                                            4
2008). More generally, Man Tao’s testimony, combined with the wiretap and

surveillance evidence, was strongly inculpatory of Man Lui. Thus, even if the

district court erred in not making a reliability determination regarding Robinson’s

testimony, the error was not prejudicial to Man Lui. See United States v.

Hermanek, 289 F.3d 1076, 1096 (9th Cir. 2002).

Prosecutorial Misconduct

      Several of the prosecutor’s comments during closing argument can only be

understood with reference to some external standard of competence or

believability. Such comments constituted improper vouching. But neither

defendant objected, and it was not reversible plain error for the district court to

allow the comments, because “in the context of the entire record, the impropriety

[did not] ‘seriously affect[] the fairness . . . of judicial proceedings,’” and failure to

reverse the conviction would not “‘amount to a miscarriage of justice.’” See

United States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007) (quoting United

States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)).

      There was no error in allowing the prosecutor to use the words “the

government” and “we” when referring to the team who conducted the criminal

investigation because, in context, these statements did not portray the prosecutor as




                                            5
so personally involved with the investigation as to constitute vouching or a

violation of the advocate-witness rule. See Hermanek, 289 F.3d at 1098-99.

      Nor did the district court err in failing to grant Pong Liu’s motion for a

mistrial after the prosecutor improperly suggested that the jury could decide

whether Pong Liu was a tax cheat. While the prosecutor’s conduct in continuing

this argument after the district court’s first interjection was brazen, the court’s

prompt and detailed curative instructions were adequate to dissipate any impact on

the jury.

Remaining Issues Raised by Man Lui

      a. Man Lui was not improperly joined for trial with Pong Liu. The

wiretapped conversations, surveillance and physical evidence demonstrate that

Man Lui and Pong Liu were involved in “a common plan, scheme or conspiracy”

to distribute cocaine and that the cocaine conspiracy had a logical relationship with

the ecstasy conspiracy. See Sarkisian, 197 F.3d 966, 976 (9th Cir. 1999). Pong

Liu participated in both simultaneously, with many of the same co-conspirators.

      Moreover, even if joinder was improper in this case, the error was harmless.

There is no discernable way that Man Lui was harmed by the joinder. In fact, the

jury did not convict him for possessing the full amount of cocaine urged by the

prosecution, indicating that it focused on and understood his limited involvement.


                                           6
      b. By failing to renew his motion to sever at any point during trial, Man Lui

waived his right to appeal. See United States v. Davis, 932 F.2d 752, 762 (9th Cir.

1991).

      c. Man Tao’s testimony, Agent Robinson’s testimony and several of the

wiretapped calls all provided evidence of a conspiracy by Man Lui and others to

distribute cocaine. Viewing the evidence in the light most favorable to the

prosecution, a rational jury could have found, beyond a reasonable doubt, the

essential elements to convict Man Lui of conspiracy to distribute 2,044 grams of

cocaine. See United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir.

2001).

      d. The clerical error in the judgment stating that Man Lui was found guilty

of conspiracy to distribute five kilograms or more of cocaine should be corrected to

reflect that jury verdict finding him guilty of conspiracy to distribute 2,044 grams

of cocaine.

Remaining Issues Raised by Pong Liu

      a. Regarding the portion of Chan Ho Liu’s testimony in which he

improperly names Pong Liu when testifying about the elements of misprision of a

felony, there was no error. The district court sustained the objection and directed




                                          7
the prosecutor to start again, at which point the prosecutor stopped pursuing that

line of questioning.

      b. The affidavit submitted by the government in support of the wiretap on

Pong Liu’s phone included “a full and complete statement as to whether or not

other investigative procedures have been tried and failed or why they reasonably

appear to be unlikely to succeed if tried or to be too dangerous.” See 18 U.S.C.

§ 2518(1)(c). The efforts to engage in other means of investigation in this case

were extensive. The district court did not abuse its discretion in determining that

the wiretap was necessary. See United States v. Garcia-Villalba, 585 F.3d 1223,

1228 (9th Cir. 2009).

      c. Although there were some errors in this case, they were relatively minor

when viewed in context. The cumulative impact of these errors was not prejudicial

considering the substantial independent evidence against Pong Liu.

      09-10290: AFFIRM VERDICT and REMAND TO CORRECT

JUDGMENT

      09-10408: AFFIRM




                                          8
