                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
     ___________

     No. 08-1546
     ___________

United States of America,        *
                                 *
           Appellee,             *
                                 *
     v.                          *
                                 *
Rodney Keith Rodebaugh,          *
                                 *
           Appellant.            *
                                 *
     ___________                         Appeals from the United States
                                         District Court for the
     No. 08-1581                         Western District of Missiouri
     ___________
                                         [PUBLISHED]

United States of America,            *
                                     *
           Appellee,                 *
                                     *
     v.                              *
                                     *
Bruce Allen Johnson,                 *
                                     *
           Appellant.                *
      ___________

      No. 08-1675
      ___________

 United States of America,               *
                                         *
             Appellee,                   *
                                         *
      v.                                 *
                                         *
 Eugene Rodney Rodebaugh,                *
                                         *
             Appellant.                  *

                                   ___________

                             Submitted: December 9, 2008
                                Filed: April 13, 2009
                                 ___________

Before MELLOY, and BENTON, Circuit Judges, and DOTY,1 District Judge.
                           ___________

DOTY, District Judge

       Appellants Rodney Keith Rodebaugh (“Keith Rodebaugh”), Bruce Allen
Johnson (“Johnson”) and Eugene Rodney Rodebaugh (“Eugene Rodebaugh”) appeal
their convictions and sentences after a jury trial in the district court.2 We affirm.



      1
      The Honorable David S. Doty, United States District Court for the District of
Minnesota, sitting by designation.
      2
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

                                         -2-
                                  BACKGROUND

       On March 5, 2007, a grand jury charged appellants and seventeen others in a
fifty-four count fourth superseding indictment with a variety of narcotics and weapons
charges. Appellants and three others proceeded to a jury trial on August 20, 2007.

       At trial, the government’s expert witness, Special Agent Steve Mattas
(“Mattas”), testified that the Drug Enforcement Administration began wiretap
surveillance of Keith Rodebaugh’s residential telephone and cell phone on May 26,
2005, due to suspected drug trafficking. Sixty-six recorded calls were played for the
jury. Mattas testified about the meaning of the code words and slang defendants used
during the calls, interpreting callers’ requests for “wheels,” “carburetors,” “movies,”
“parts,” “tools,” “prescriptions,” “oil,” “packs of cigarettes” and “tires” as drug-
seeking inquiries. (Trial Tr. at 239-42, 374-83.) Mattas also explained to the jury the
meaning of defendants’ vague conversations. For instance, according to Mattas, a
caller who said he wanted to “see if [Keith Rodebaugh] had them motors” and later
asked “[w]hat’s the possie of getting bored like 30 over?” was asking about the
availability of marijuana. (Id. at 235.) Defendants objected to Mattas’s testimony on
the basis that it invaded the province of the fact finder. The district court overruled
the objection but granted defendants’ request for a continuing objection on that same
basis. (Id. at 210-11, 216.)

      On August 27, 2007, the jury convicted defendants on some counts and
acquitted them on others. As relevant to this appeal, all appellants were convicted of
using a telephone to facilitate a controlled substance offense in violation of 21 U.S.C.
§ 843(b) and 18 U.S.C. § 2.3 In addition, the jury convicted Keith and Eugene


      3
        Keith Rodebaugh was convicted on eleven counts of using a telephone to
facilitate a controlled substance offense, Eugene Rodebaugh was convicted on two
counts and Johnson was convicted on one count.

                                          -3-
Rodebaugh of conspiring between 1998 and 2005 to distribute or possess with intent
to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846.4 The jury later
returned a special verdict that held Keith and Eugene Rodebaugh responsible on the
conspiracy count for 100 and 50 kilograms of marijuana, respectively.5

       At Keith Rodebaugh’s February 15, 2008, sentencing hearing, the district court
held Keith responsible for 2,500 kilograms of marijuana on the conspiracy conviction
based upon the testimony of government informant Ben Cavin (“Cavin”). This
resulted in a base offense level of thirty-two. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c) (2007). After applying enhancements for an aggravating role and
possession of a dangerous weapon, the court determined that Keith’s adjusted offense
level was thirty-seven. See id. §§ 2D1.1(b)(2), 3B1.1. With a criminal history
category of III, his applicable guidelines range was 262 to 327 months, and he was
sentenced to 262 months imprisonment.6 On March 7, 2008, the district court heard
evidence that Eugene Rodebaugh allowed Keith to store marijuana at his home and
was accountable for at least thirty-two kilograms per month for two years. As a result,
the court held Eugene responsible for 768 kilograms of marijuana on the conspiracy
conviction, resulting in a base offense level of thirty. See id. § 2D1.1(c). The court
then applied a two-level enhancement for possession of a dangerous weapon, resulting
in an adjusted offense level of 32. See id. § 2D1.1(b)(2). With a criminal history
category of II, Eugene Rodebaugh’s applicable guidelines range was 135 to 168

      4
        In addition, the jury convicted Keith Rodebaugh of two counts of distribution
of cocaine, one count of distribution of marijuana, one count of possession with intent
to distribute marijuana and one count of being a felon in possession of ammunition.
Eugene Rodebaugh was also convicted of one count of possession with intent to
distribute marijuana.
      5
       The special verdict form permitted the jury to choose either 1,000, 100 or 50
kilograms of marijuana.
      6
       The court imposed additional lesser concurrent sentences for the other counts
of conviction.

                                         -4-
months, and he was sentenced to 144 months imprisonment.7 On the same day, the
court sentenced Johnson to 48 months imprisonment. Appellants now challenge their
convictions and sentences.

                                   DISCUSSION

I. Expert Testimony
       Keith and Eugene Rodebaugh first argue that the district court abused its
discretion by allowing Special Agent Mattas to testify as an expert about the meaning
of common, everyday language. Pursuant to Rule 702 of the Federal Rules of
Evidence, an expert may assist a jury in understanding the jargon and code words used
by drug dealers. See United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996);
United States v. Lowe, 9 F.3d 43, 47 (8th Cir. 1993), cert. denied, 510 U.S. 1181
(1994). When jurors can make a common sense determination of the evidence without
the technical aid of an expert, however, expert testimony should be excluded. See
United States v. Davis, 457 F.3d 817, 824 (8th Cir. 2006); United States v. Kime, 99
F.3d 870, 884 (8th Cir. 1996). Such exclusion prevents an expert from usurping “‘the
exclusive function of the jury to weigh the evidence and determine credibility.’” See
United States v. Azure, 801 F.2d 336, 340 (8th Cir. 1986) (quoting United States v.
Samara, 643 F.2d 701, 705 (10th Cir. 1981), cert. denied, 454 U.S. 829 (1981)). We
review a district court’s decision to admit expert testimony for an abuse of discretion.
See United States v. Robertson, 387 F.3d 702, 704 (8th Cir. 2004); United States v.
Jordan, 236 F.3d 953, 955 (8th Cir. 2001). If the testimony was improper, we will
reverse only if there is a significant possibility that the testimony substantially
impacted the jury. See United States v. Brown, 110 F.3d 605, 610 (8th Cir. 1997);
Delpit, 94 F.3d at 1145.




      7
       The court again imposed additional lesser concurrent sentences for the other
counts of conviction.

                                          -5-
      To support their argument, the Rodebaughs cite the following testimony:

      [Caller’s voice:] What’s the business, man?
      [Mattas’s testimony:] [He] was inquiring if . . . 30 pounds of marijuana
      was available.

      [Caller’s voice:] Did you look at those things you brought back?
      [Mattas’s testimony:] [Keith] Rodebaugh is inquiring if [he] had looked
      at that marijuana he had brought back from Kansas City.
      [Caller’s voice:] Yeah, because I didn’t really want to go all the way
      around with everything.
      [Mattas’s testimony:] [H]e didn’t want to drive around with the
      marijuana in his car.

      [Caller’s voice:] If I do that, do you want me to do anything for you
      while I’m there?
      [Mattas’s testimony:] Eugene Rodebaugh was asking Keith Rodebaugh
      if he . . . needed to pick up any additional marijuana.

      [Caller’s voice:] Yeah, try to wrap that up for me, man.
      [Mattas’s testimony:] [H]e was asking [Johnson] to get money to him for
      previous marijuana.

      [Caller’s voice:] Do you already got the stuff?
      [Mattas’s testimony:] Theresa Rodebaugh was asking [him] if he already
      had the marijuana.

      [Caller’s voice:] That’s it, but I’m about ready, ready.
      [Mattas’s testimony:] [He] was ready to acquire more marijuana.

      [Caller’s voice:] You know I’m outtie.
      [Mattas’s testimony:] [H]e was going to be leaving the United States.

      [Caller’s voice:] What’s up with your buddy?
      [Mattas’s testimony:] [Keith] Rodebaugh was asking about [him].

(Trial Tr. at 236, 241-42, 368, 371, 386, 389, 391, 393.)

                                         -6-
       Assuming that Mattas’s challenged testimony was improper, we find that it did
not substantially impact the jury. First, Mattas’s opinions were substantiated by other
evidence, including Cavin’s testimony and surveillance by undercover officers.
Delpit, 94 F.3d at 1145 (expert’s testimony did not substantially impact jury when
other evidence necessitated same conclusion). Second, the district court expressly
instructed the jurors that they should treat Mattas’s testimony like that of any other
witness and that his opinion was not binding. See Brown, 110 F.3d at 611 (no
substantial impact when court instructed jury it was not bound by expert’s opinion);
Delpit, 94 F.3d at 1145 (same); United States v. Daniels, 723 F.2d 31, 33 (8th Cir.
1983) (same). Third, the jury acquitted defendants on several phone counts,
indicating that it independently assessed the content and meaning of each
conversation.8 Therefore, we determine that reversal is not warranted.

II. Judgment of Acquittal
      Johnson argues that the district court erred in denying his motion for judgment
of acquittal. On appeal, we review the evidence in the light most favorable to the
government, resolving evidentiary conflicts in its favor, and accepting all reasonable
inferences drawn from the evidence that support the jury’s verdict. See United States
v. Thompson, 285 F.3d 731, 733 (8th Cir. 2002). We uphold the jury’s verdict if there
is an interpretation of the evidence that would allow a reasonable jury to find
defendant guilty beyond all reasonable doubt. Id.

      Johnson was convicted of count thirty-seven of the fourth superseding
indictment, which provided that:

      On or about June 10, 2005, in the Western District of Missouri, and
      elsewhere, [Johnson] did knowingly and intentionally use a
      communications facility (a telephone) to facilitate the commission of the

      8
      Keith Rodebaugh was acquitted on two counts and Johnson was acquitted on
one count of use of a telephone to facilitate a drug offense.

                                         -7-
      crimes of distribution and possession with intent to distribute marijuana,
      a Schedule I controlled substance, in violation of Title 21, United States
      Code, Section 843(b) and Title 18, United States Code, Section 2.

(Johnson Index at 60-61.) To sustain its burden of proof, the government had to prove
beyond a reasonable doubt that Johnson (1) knowingly or intentionally (2) used a
telephone (3) to facilitate the commission of a drug offense. See United States v.
Mims, 812 F.2d 1068, 1077 (8th Cir. 1987). The government also had to show by a
preponderance of the evidence that the underlying offense of knowingly or
intentionally distributing and possessing with intent to distribute marijuana occurred.
Id. Johnson maintains that the government presented no evidence to support the
underlying offense.

        At trial, the government introduced into evidence a recording of a June 10,
2005, phone call between Johnson and Keith Rodebaugh. During their conversation,
Johnson asked whether Keith would be home “for a second right now.” (Gov. Br. at
56; Trial Tr. at 382-83.) Keith responded, “Ah shh, yeah, I’m here. I mean it’d take
ya . . . I’ll have ta have someone fuckin’ get those parts over here for ya, you know
what I’m sayin’?” (Gov. Br. at 56; Trial Tr. at 382-83.) Johnson then asked whether
that was something “you can do now?” and Keith responded, “It’ll take a minute.”
(Gov. Br. at 56.) Immediately thereafter, Keith called Cavin and asked him to bring
over “a couple packs of cigarettes.” (Gov. Br. at 56; Trial Tr. at 382-83.) Keith later
called Johnson and told him to “come on.” (Gov. Br. at 56.) In addition to this call,
the government presented four other recorded conversations wherein Johnson and
Keith Rodebaugh discussed marijuana transactions, and three witnesses testified that
Johnson regularly purchased significant quantities of marijuana from Keith
Rodebaugh. (Trial Tr. at 75, 163, 194, 332-33.)




                                         -8-
       In light of Mattas’s testimony about defendants’ use of code words and jargon,
as well as the evidence establishing Johnson’s ongoing drug relationship with Keith
Rodebaugh, a reasonable jury could have inferred that Johnson called Keith
Rodebaugh on June 10, 2005, to obtain marijuana. Furthermore, a reasonable jury
could have inferred that Keith Rodebaugh’s request that Cavin “bring him a couple
packs of cigarettes” was a request for marijuana, and that upon securing the drugs,
Keith Rodebaugh immediately called Johnson to deliver the drugs to him. A
reasonable jury thus could have concluded that Keith Rodebaugh knowingly
distributed and possessed with intent to distribute marijuana, and that Johnson’s phone
call facilitated that offense. See United States v. Ward, 696 F.2d 1315, 1319 (11th
Cir. 1983) (“A prima facie case [of a § 843(b) violation] need not include proof that
the defendant [himself] committed the underlying offense.”); United States v. Rey,
641 F.2d 222, 224 n.6, 227 n.10 (5th Cir. 1981) (burden of proof satisfied when
defendant intentionally used telephone to facilitate another’s commission of offense).
Therefore, the evidence supports the jury’s verdict, and we affirm.

III. Sentencing
       A. Acquitted Conduct
       Keith and Eugene Rodebaugh argue that the district court violated their rights
to due process and a jury trial under the fifth and sixth amendments to the U.S.
Constitution when it based their sentences on larger drug quantities than those
specified by the jury in its special verdict. Defendants do not argue that the court’s
drug quantity determinations were clearly erroneous, but rather that the court
impermissibly increased defendants’ punishment by relying on acquitted conduct. We
review constitutional challenges to sentences de novo. United States v. Carpenter, 487
F.3d 623, 625 (8th Cir. 2007); United States v. Gallimore, 491 F.3d 871, 875 (8th Cir.
2007).

      When determining a defendant’s sentence, a district court may consider “all
drugs that the government shows by a preponderance of the evidence were a part of

                                         -9-
the same course of conduct or common scheme as the conspiracy, even where the
defendant was acquitted of such conduct.” United States v. Gordon, 510 F.3d 811,
817 (8th Cir. 2007). It is well-established that this standard satisfies the constitutional
guarantees of the fifth and sixth amendments. See United States v. Davis, 457 F.3d
817, 825 (8th Cir. 2006) (sixth amendment); United States v. Okai, 454 F.3d 848, 851-
52 (8th Cir. 2006) (fifth amendment); see also United States v. McKay, 431 F.3d
1085, 1094 (8th Cir. 2005) (the court has “squarely rejected” the proposition that it
is error for a district court to find drug quantity by a preponderance of the evidence
at sentencing). Moreover, the amount of drugs specified by a jury in a special verdict
form is not binding upon a district court at sentencing. See United States v. Webb,
545 F.3d 673, 677 (8th Cir. 2008) (“A district court may impose a sentence based on
a drug quantity determination greater than that found by the jury.”); United States v.
Titlbach, 300 F.3d 919, 922 (8th Cir. 2002) (no error when district court based
sentencing calculation on a greater quantity of drugs than specified in special verdict
form); see also United States v. Washburn, 444 F.3d 1007, 1014 (8th Cir. 2006)
(amount of loss reported by jury in special interrogatory not binding on court at
sentencing). Therefore, the district court’s drug quantity determinations did not
violate the Rodebaughs’ constitutional rights.

       B. Criminal History
       Keith Rodebaugh also appeals the district court’s calculation of his criminal
history category, arguing that it improperly included his 1997 state conviction for
possession of marijuana. “We review de novo the district court’s construction and
interpretation of the criminal history provisions of the sentencing guidelines, and we
review for clear error the district court’s application of the guidelines to the facts.”
United States v. Pando, 545 F.3d 682, 683 (8th Cir. 2008) (quotation omitted).

      Under Guidelines § 4A1.1, a defendant receives criminal history points for each
prior sentence. A “prior sentence” is “any sentence previously imposed upon
adjudication of guilt . . . for conduct not part of the instant offense.” Guidelines

                                           -10-
§ 4A1.2(a)(1). If the conduct is part of the instant offense, it is treated as relevant
conduct and considered in the calculation of a defendant’s offense level, not his
criminal history category. See id. § 1B1.3(a). Relevant conduct includes “all acts .
. . that occurred during the commission of the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid detection or responsibility for that
offense.” Id. In contrast, prior criminal conduct that is severable and distinct is not
relevant conduct. See United States v. Phelps, 536 F.3d 862, 868 (8th Cir. 2008). To
make this factual determination, we consider several factors, including the “temporal
and geographical proximity [of the offenses], common victims, common scheme,
charge in the indictment and whether the prior conviction is used to prove the instant
offense.” United States v. Stone, 325 F.3d 1030, 1032 (8th Cir. 2003) (citations
omitted).

       In this case, the 1997 conviction occurred before the time period charged in the
conspiracy. The 1997 offense was not included in the indictment, nor was evidence
related to it presented at trial. Moreover, the 1997 conviction did not facilitate or
further the instant conspiracy to distribute and possess with intent to distribute
marijuana. For these reasons, the district court did not clearly err by using the 1997
conviction to determine Keith Rodebaugh’s criminal history category.

      The judgment of the district court is affirmed.
                      _____________________________




                                          -11-
