                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              NOV 18 2009

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

UNITED STATES OF AMERICA,                        No. 08-10003

             Plaintiff - Appellee,               D.C. No. CR-04-05327-AWI-6

  v.
                                                 MEMORANDUM *
JAVIER MANZO LUA,

             Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                          Submitted November 3, 2009**
                            San Francisco, California

Before: HUG, RYMER and McKEOWN, Circuit Judges.

       Javier Manzo Lua appeals his jury conviction of conspiracy to manufacture

and possess with intent to distribute marijuana, possess cocaine with intent to

distribute, and distribute methamphetamine. Lua asserts two errors: first, that the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
district court erred in allowing special agent Isaias Rivera to testify both as an

expert and as a lay witness; and second, that there was insufficient evidence to

support a conviction for conspiracy. We affirm.

                                  DUAL TESTIMONY

       We review failure by the district court to instruct as to the dual nature of

expert and lay testimony from a single witness for plain error where, as here, the

defendant fails to object to the dual nature of the testimony at trial. United States

v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007). Consistent with our precedent, the

district court’s failure to provide such an instruction here does not amount to plain

error because the line between expert and lay testimony is a fine one, particularly

where the witness is qualified to testify both as an expert and as a lay witness. Id.

      A special agent may testify both as an expert witness with regards to coded

conversations and as a lay witness with regard to both observations made during

surveillance and familiarity with recorded conversations. United States v. Reed,

575 F.3d 900, 922 (9th Cir. 2009). The district court did not otherwise abuse its

discretion in admitting the testimony of Agent Rivera. The majority of Rivera’s

testimony focused on the admissible interpretation of drug jargon and the

admissible recitation of his surveillance of Lua. Defense counsel also had the




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opportunity to cross-examine Rivera, making it unlikely the jury would be misled

by ambiguity regarding Rivera’s dual roles. Id.

                              INSUFFICIENT EVIDENCE

      We review de novo claims of insufficient evidence. United States v.

Corona-Verbera, 509 F.3d 1105, 1117 (9th Cir. 2007). “There is sufficient

evidence to support a conviction if, ‘viewing the evidence 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.’” Id. (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)). To prove a drug conspiracy, the

government must demonstrate “(1) an agreement to accomplish an illegal

objective, and (2) the intent to commit the underlying offense.” United States v.

Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001). “Conflicting evidence is

to be resolved in favor of the jury verdict, and all reasonable inferences are to be

drawn in favor of the government.” Corona-Verbera, 509 F.3d at 1117 (internal

quotation marks omitted).

      The evidence presented at trial was sufficient to support the jury’s

conviction. Lua engaged in frequent conversations with the head of the Pulido

drug conspiracy; used familiar coded terminology to refer to controlled substances;

met with Pulido and exchanged items; negotiated to rent a room from which police


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seized 820 pounds of marijuana; discussed a deal to store in the garage of that

same house a car from which police seized cocaine, methamphetamine, packaging

materials and $10,400 cash; paid $1,500 to the man who stored the marijuana and

car at his house; and took a garbage sack containing marijuana clippings from a

ranch where he worked, discarding it at another location. Police later seized

approximately 3,280 pounds of marijuana from a processing operation at that

ranch. This evidence is sufficient to allow a jury to conclude that Lua agreed with

other conspiracy defendants to accomplish the conspiracy and that Lua had the

requisite intent to commit the underlying offense.

      AFFIRMED.




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