                                             NOT PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
             _____________

                  No. 10-4304
                 _____________

       UNITED STATES OF AMERICA

                        v.

          JONATHAN COBB, a/k/a JC


              JONATHAN COBB,
                   Appellant
                _____________

                  No. 10-4305
                 _____________

       UNITED STATES OF AMERICA

                        v.

           DAVID COBB, a/k/a Sweat


                 DAVID COBB,
                    Appellant
                 _____________


 On Appeal from the United States District Court
     for the Eastern District of Pennsylvania
 (Nos. 2:09-cr-00733-001 & 2:09-cr-00733-002)
 District Judge: Honorable Eduardo C. Robreno

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                March 22, 2012
                ____________
             Before: RENDELL, FISHER and CHAGARES, Circuit Judges.

                                   (Filed: May 25, 2012)
                                       ____________

                                        OPINION
                                       ___________

CHAGARES, Circuit Judge.

       David Cobb and Jonathan Cobb challenge their respective convictions related to

their participation in a cocaine distribution scheme, alleging that the District Court erred

by admitting conversations captured on an illegal wiretap, failing to exclude evidence

seized during the warrantless search of David Cobb’s vehicle, and allowing inappropriate

expert testimony under Federal Rule of Evidence 702. David Cobb also challenges the

District Court’s admission of his prior convictions, and Jonathan Cobb contends that the

District Court’s upward variance at his sentencing renders his sentence unreasonable.

We will affirm in all respects.

                                              I.

       Because we write exclusively for the parties, we provide only an abbreviated

summary of the facts essential to our disposition. On November 18, 2009, a grand jury

returned a two-count indictment charging brothers David and Jonathan Cobb with

conspiracy to possess with intent to distribute 500 grams or more of cocaine and

possession of cocaine with intent to distribute, both in violation of 21 U.S.C. §

841(b)(1)(B)(ii). These charges arose from the Cobbs’ participation as middlemen in a




                                              2
cocaine distribution enterprise in Delaware County, Pennsylvania, which law

enforcement authorities began investigating in March 2008.

       As part of its investigation, authorities sought to obtain a wiretap for Jonathan

Cobb’s mobile phone pursuant to 18 U.S.C. § 2518. In support of its application for a

wiretap, the Government submitted a 64-page affidavit from FBI Special Agent Luke

Church detailing the nature and scope of the investigation of the Cobbs’ drug dealing

activities. Appendix (“App.”) 54-117. 1 The necessity section of this affidavit, which

spanned eight pages, stated that “interception of wire communications over [Jonathan

Cobb’s mobile phone] is the only available technique with a reasonable likelihood of

identifying the full scope of this conspiracy” given the insular nature of the enterprise and

the Cobbs’ efforts to evade police surveillance. Id. at 106-14. In support of this

assertion, Agent Church explained that the use of undercover agents and additional

confidential informants was dangerous and unlikely to lead to additional relevant

information, given that the Cobbs “are very cautious and normally deal only with persons

who have had a close relationship with one or more members of the organization” and

none of the confidential informants were in a position to provide information about the

Cobbs’ suppliers. Id. at 108-09. Agent Church further averred that physical surveillance

had been difficult because Jonathan Cobb actively sought to avoid detection, including

using rental cars and monitoring the cars outside his home. Id. at 110-11. Other forms of

investigation were likewise problematic because they would make the Cobbs aware of the

1
  Jonathan and David Cobb filed separate appendices containing the same relevant
documents. For convenience, all citations to the “Appendix” refer to the appendix filed
by Jonathan Cobb.
                                             3
ongoing investigation and thus cause the Cobbs to “become more circumspect in their

dealings.” Id. at 113.

       Based on the information contained in Agent Church’s affidavit, on September 29,

2009, the District Court authorized a 30-day wiretap of Jonathan Cobb’s mobile phone.

The evidence obtained through the wiretap included conversations in which Jonathan

Cobb orchestrated the buying and selling of cocaine and warned his co-conspirators about

police surveillance. On October 20, 2009, agents overheard a conversation that led them

to believe Jonathan and David Cobb were planning to obtain a large quantity of cocaine

that evening. Id. at 146. Based on surveillance indicating the Cobbs had met with their

supplier, police stopped each of their respective cars on an exit ramp off an interstate. Id.

at 194-223. After an officer ordered David Cobb to put his hands up, the officer observed

David Cobb lean down with both hands “down below the seat area” of the car. Id. at 224.

David Cobb eventually complied, and the same police officer drove David Cobb’s

vehicle to a nearby parking lot. Id. at 224-25. While driving, the officer noticed a

shopping bag under the passenger seat, which he later discovered contained a 997-gram

brick of cocaine. Id. at 225.

       Both sides filed pretrial motions. The Government sought to introduce recordings

obtained during the wiretap of Jonathan Cobb’s mobile phone and evidence of prior

criminal conduct pursuant to Federal Rule of Evidence 404(b) and 609. The Cobbs

opposed these motions (either by argument or by brief) and filed a motion to suppress

evidence seized from the warrantless search of David Cobb’s vehicle. On June 15, 2010,



                                              4
the District Court granted the motion to admit wiretap evidence and partially granted the

Government’s motion to admit evidence under Rule 404(b).

       Following a seven-day trial, on June 28, 2010, a jury found Jonathan and David

Cobb guilty of both counts. 2 On November 3, 2010, David Cobb was sentenced to a term

of 288 months of imprisonment, eight years of supervised release, and a $1,500 fine.

Two days later, Jonathan Cobb was sentenced to an identical period of imprisonment and

supervised release, along with a $2,500 fine.

                                             II.

                                             A.

       The Cobbs first contend that the wiretap of Jonathan Cobb’s phone was improper

because Agent Church’s affidavit failed to demonstrate the required necessity to secure a

wiretap. “We review de novo the question of whether a full and complete statement of

necessity for a wiretap was made in the application. Once it is determined that the

statement was made, we will review the court’s determination of necessity for an abuse

of discretion.” United States v. Phillips, 959 F.2d 1187, 1189 (3d Cir. 1992). 3

       To demonstrate necessity, the Government must provide an affidavit containing “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


2
  A third co-defendant was found not guilty on both counts.
3
  Because David Cobb did not join Jonathan Cobb’s pretrial motion to bar wiretap
evidence, the Government asserts that we should apply plain error review. Gov’t Br. 36
n.4. David Cobb responds that he did join in the objection at trial. Because we hold that
the District Court did not abuse its discretion in admitting the wiretap evidence, we need
not decide whether David Cobb properly raised an objection to this evidence.
                                             5
too dangerous[.]” 18 U.S.C. § 2518(1)(c). After evaluating this affidavit, a court may

only grant an application for a wiretap if it finds that “normal investigative procedures”

have failed, or such procedures are too dangerous or are unlikely to succeed. Id. §

2518(3)(c). These necessity provisions were “designed to assure that wiretapping is not

resorted to in situations where traditional investigative techniques would suffice to

expose the crime.” United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). However,

“courts have consistently held that 18 U.S.C. § 2518(3)(c) does not require the

government to exhaust all other investigative procedures before resorting to electronic

surveillance.” United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997). Rather, the

“government need only lay a ‘factual predicate’ sufficient to inform the judge why other

methods of investigation are not sufficient.” Id. (quoting United States v. McGlory, 968

F.2d 309, 345 (3d Cir. 1992)).

       Review of the affidavit submitted by Agent Church compels us to conclude that

the wiretap application contained sufficient factual information to demonstrate why other

methods of investigation were inadequate. Specifically, Agent Church explained that the

drug dealing conspiracy took great care to conceal its activities, especially insofar as

members of the conspiracy refused to engage in transactions with unknown persons and

took affirmative steps to thwart police surveillance. App. 108-13. Thus, we find that the

District Court did not abuse its discretion by determining that the wiretap was warranted. 4


4
  David Cobb also argues that the wiretap was improper because Agent Church’s
affidavit did not establish probable cause that “particular communications concerning” a
narcotics-related offense would be captured through a wiretap, as required by 18 U.S.C. §
2518(3). There is extensive evidence in the affidavit that Jonathan Cobb used his mobile
                                              6
                                              B.

       The Cobbs next argue that the District Court erred by failing to suppress evidence

of the cocaine found in the automobile driven by David Cobb. “[W]e review the denial

of a suppression motion for clear error as to the underlying facts, but exercise plenary

review as to its legality in light of the court’s properly found facts.” United States v.

Agnew, 407 F.3d 193, 196 (3d Cir. 2005).

       Although the Fourth Amendment generally requires police to secure a warrant

before conducting a search, the longstanding “automobile exception” to the warrant

requirement allows police to search a vehicle so long as there is “probable cause to

believe [the] vehicle contains evidence of criminal activity.” Arizona v. Gant, 556 U.S.

332, 347 (2009). Thus, when there is probable cause to search a vehicle, the search “is

not unreasonable if based on facts that would justify the issuance of a warrant, even

though a warrant has not been actually obtained.” United States v. Ross, 456 U.S. 798,

809 (1982). This type of automobile search may extend to “any area of the vehicle in

which the evidence might be found.” Gant, 556 U.S. at 347.

       Accordingly, if the police had probable cause to believe drugs or other evidence of

the Cobbs’ drug dealing conspiracy was present in the vehicle, the search of the vehicle

cannot violate the Fourth Amendment. Probable cause is a “fluid concept” that requires a

court to analyze the totality of the circumstances to determine whether “there is a fair




phone to conduct illegal drug transactions, including a statement from a confidential
witness that Jonathan Cobb used his mobile phone for this purpose. See App. 72-73.
This argument is plainly without merit.
                                              7
probability that contraband or evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983).

       We have no difficultly concluding that the District Court was correct in finding

that police officers had probable cause to believe that evidence of the Cobbs’ drug

dealing operation was present in the vehicle. By this point, federal and state investigators

had collected ample evidence that the Cobbs bought and sold illegal narcotics. The

wiretapped conversation between Jonathan Cobb and his supplier led investigators to

believe that the Cobbs intended to meet with the supplier to obtain a large amount of

cocaine. Law enforcement officers then arranged surveillance, through which they

observed the Cobbs meet with the supplier and then drive away. Although the

surveillance team briefly lost track of the Cobbs’ vehicles during this transaction, they

were able to locate them by tracing their cell phones shortly after they believed the

transaction occurred. The totality of the evidence here compels us to uphold the District

Court’s finding that there was probable cause to search David Cobb’s vehicle, and thus

the District Court did not err by refusing to suppress the evidence found pursuant to that

search.

                                               C.

       Jonathan Cobb next argues that the District Court erred in allowing Police Officer

David Tyler to testify as an expert in the field of coded drug language. We review the




                                               8
admission of expert testimony for abuse of discretion. United States v. Gibbs, 190 F.3d

188, 211 (3d Cir. 1999). 5

       District courts have broad discretion to determine whether to admit expert

testimony so long as such testimony “is helpful to the trier of fact.” Id. More relevant to

the specific circumstances here, “it is well established that experienced government

agents may testify to the meaning of coded drug language under Federal Rule of

Evidence 702.” Id. We have explained that “[b]ecause the primary purpose of coded

drug language is to conceal the meaning of the conversation from outsiders through

deliberate obscurity, drug traffickers’ jargon is a specialized body of knowledge and thus

an appropriate subject for expert testimony.” Id.

       Officer Tyler testified that he had been an officer in the Chester County Police

Department for twenty-one years, sixteen of which were spent in the narcotics unit. App.

320. During his career, Officer Tyler participated in more than 1,000 drug investigations

and received specialized training on the coded language used by drug dealers. Id. at 299,

314. Given his lengthy experience with confidential informants and narcotics dealers,

Officer Tyler was well-qualified to opine on the meaning of the language used by these

defendants. Moreover, while Jonathan Cobb argues that Officer Tyler’s testimony was

unhelpful to the jury because he “simply narrate[d] what is being said among the

conversant on the intercepted calls,” J. Cobb Br. 29, the copious use of slang and jargon


5
  Although the Government suggests that we should review this claim for plain error
because the Cobbs did not properly object at trial, the record reveals that counsel for both
David and Jonathan Cobb objected to Officer Tyler testifying as an expert witness. App.
311.
                                             9
by the Cobbs during the wiretapped conversations made Officer Tyler’s testimony useful

because it enabled the jury to understand what the conversations were about. We also see

no error in the District Court’s decision to allow Officer Tyler to serve as both an expert

witness and a fact witness, given that his testimony as a fact witness was limited to

identifying the voices heard during the wiretapped conversations. The District Court

therefore did not abuse its discretion by admitting Officer Tyler’s testimony.

                                             D.

       David Cobb also argues that the District Court erred by allowing the Government

to introduce his prior drug convictions under Federal Rule of Evidence 404(b). Our

review is plenary when a district court’s ruling “requires us to interpret the rules of

evidence.” United States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006). However, we

review a district court’s decision to admit evidence of prior bad acts under Rule 404(b)

for an abuse of discretion so long as “the evidence could have been admissible in some

circumstances.” Id.

       Federal Rule of Evidence 404(b) prohibits the introduction of “[e]vidence of other

crimes, wrongs, or acts” for the purpose of “prov[ing] the character of a person in order

to show action in conformity therewith.” Such evidence may be admitted, however, “for

other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident,” so long as “the prosecution in a

criminal case [provides] reasonable notice in advance of trial . . . of the general nature of

any such evidence it intends to introduce at trial.” Id. Thus, we have held that evidence

of other acts may be admitted under Rule 404(b) when it (1) has a proper evidentiary

                                             10
purpose, (2) is relevant under Rule 402, (3) is not substantially more prejudicial than

probative as required by Rule 403, and (4) is accompanied by a limiting instruction, when

such an instruction is requested. United States v. Cross, 308 F.3d 308, 321 (3d Cir.

2002).

         Under these circumstances, the District Court did not abuse its discretion in

determining that the admission of David Cobb’s two former convictions for possession

with intent to deliver cocaine satisfied Rule 404(b). This evidence was relevant for the

purpose of showing David Cobb’s knowledge and intent with regard to the brick of

cocaine discovered in the car he was driving. As we have held in nearly identical

circumstances, the District Court did not abuse its discretion by finding that the evidence

was not substantially more prejudicial than probative, particularly given that the District

Court provided an appropriate limiting instruction. See United States v. Givan, 320 F.3d

452, 461-62 (3d Cir. 2003) (holding that a defendant’s prior drug conviction was properly

admitted under Rule 404(b) because it was relevant to showing the defendant’s intent

with regard to the drugs found in his car and the court had issued a proper limiting

instruction). Thus, the Rule 404(b) elements are satisfied.

         David Cobb argues that, unlike the defendant in United States v. Givan, he did not

put his knowledge at issue because he did not testify in his own defense to deny knowing

the drugs were in his car. This contention is unavailing because we have held that “[t]he

parameters of Rule 404(b) are not set by the defense’s theory of the case; they are set by

the material issues and facts the government must prove to obtain a conviction.” United

States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992). Because intent was a necessary

                                              11
element of the charges for which David Cobb was on trial, the District Court did not

abuse its discretion by admitting this evidence.

                                             E.

       Finally, Jonathan Cobb argues that the District Court erred by granting the

Government’s motion for an upward variance to give him a sentence significantly higher

than the range recommended by the United States Sentencing Guidelines. Review of a

sentence imposed by a district court requires us to consider first whether the district court

committed any procedural error. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.

2009) (en banc). If no such error occurred, we must then consider the sentence’s

substantive reasonableness based on the totality of the circumstances. Id. “At both

stages of our review, the party challenging the sentence has the burden of demonstrating

unreasonableness.” Id.

       Jonathan Cobb alleges no procedural error, but instead argues that his sentence of

288 months of imprisonment, well above the recommended Guidelines range of 130-162

months, was unreasonable in light of the factors already encompassed in the Guidelines

calculation and his “relatively modest criminal record.” J. Cobb Br. 32. Given the

extensive criminal background described in Jonathan Cobb’s Pre-Sentence Investigation

Report, which included crimes involving guns and violence, and given the evidence

showing Jonathan Cobb was the leader of the conspiracy in this case, he has not satisfied

his burden of proving that his sentence is substantively unreasonable.

                                             III.

       For the foregoing reasons, we will affirm the judgments of the District Court.

                                             12
