                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 12a0308n.06
                                                                                            FILED
                                           No. 09-4285                                 Mar 20, 2012
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )    ON APPEAL FROM THE UNITED
v.                                                      )    STATES DISTRICT COURT FOR
                                                        )    THE SOUTHERN DISTRICT OF
                                                        )    OHIO
DANIEL GARCIA-GUIA                                      )
                                                        )
       Defendant-Appellant.                             )


Before: SILER and GRIFFIN, Circuit Judges; TARNOW, District Judge.*

       SILER, Circuit Judge. Daniel Garcia-Guia (Garcia) appeals his conviction of three federal

drug charges. He does not contest the sufficiency of the evidence. Instead, he argues that his

conspiracy conviction should be vacated under Supreme Court precedent and his other convictions

should be vacated due to evidentiary errors. For the following reasons, we vacate the conspiracy

conviction under 21 U.S.C. § 846 and affirm his other convictions.

                                                 I.

       A jury convicted Garcia of: 1) conspiracy to distribute and possess with the intent to

distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 846; 2) attempted possession

with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841; and 3)

a continuing criminal enterprise in violation of 21 U.S.C. § 848.


       *
       The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 09-4285
United States v. Garcia-Guia

                                                    II.

       The government concedes that the conspiracy conviction under 21 U.S.C. § 846 should be

vacated. Since the conspiracy charge is a lesser-included offense of the 21 U.S.C. § 848 continuing

criminal enterprise charge, under Rutledge v. United States, 517 U.S. 292, 307 (1996), the § 846

conspiracy conviction is vacated.

                                                    III.

                                                    A.

       Garcia argues that FBI, DEA, and other law enforcement officers testified to information that

they learned from confidential informants (CIs) in violation of the Confrontation Clause. Almost

all of the testimony that purportedly violated the Confrontation Clause was offered by the

government without objection.

       Specifically, Garcia takes exception to the testimony of Officer Bradley Barnett. Without

objection, Barnett testified that Garcia went by the alias “Comino.” Other witnesses with first-hand

knowledge of Garcia’s alias also testified that Garcia went by the alias “Comino” but Garcia does

not dispute the admissibility of their testimony.

       Garcia also complains that Agent Steve Lucas offered legal conclusions in his testimony in

violation of Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985). Without objection,

Lucas referred to Garcia and his associates as “coconspirators” throughout his testimony. He also

testified, without objection, that CIs led him to locations where he believed they could find evidence

of “drug trafficking,” and after the arrest of three individuals he stated, “[w]e continued extensive

surveillance moving forward and identified other coconspirators that were involved within this drug

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trafficking conspiracy; a multitude of them.” Finally, when asked about a controlled drug buy,

Lucas, without objection, stated that he learned through a joint investigation with two FBI field

offices that “the ultimate recipients [of the cocaine] were one of [Garcia’s] brothers and two other

coconspirators.”

                                                  B.

       Garcia did object to some of the testimony that he now complains violated his Confrontation

Clause rights. Barnett testified about a search of a drug stash house where he found a drug ledger

with the name “Comino” written inside. The prosecutor asked Barnett, “What information do you

have that has led to your conclusion that the name Comino set forth in that drug ledger is tied to this

defendant in this case who is also known as Comino?” Defense counsel objected on hearsay

grounds. The district court overruled the objection and instructed the jury, “Ladies and gentlemen,

the witness’s answer is not offered for the truth of his information, just as evidence that he received

certain information, whether true or not, upon which he based a conclusion. And again the truth of

his conclusion is for you to ultimately determine.” Barnett testified, “We received information from

several sources that Comino was a drug trafficker in the Dayton, Ohio area . . . .”

       Garcia also objected to a portion of Agent Carlos Olivo’s testimony. The government asked

Olivo when he became aware of the involvement of a individual named Mario Medina in the

delivery of drugs that were the subject of a controlled drug buy. Olivo testified, “I was aware of him

because Agent Steven Lucas had told me that there was someone in the area named Mario Medina

from El Paso, Texas who was trying to orchestrate a large cocaine deal and I knew who he was at



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the time.” Defense counsel made a hearsay objection but the district court allowed the testimony for

the non-hearsay purpose of explaining the direction of the agent’s investigation.

                                                   C.

        Garcia also complains about other portions of Olivo’s testimony, which were not objected

to at trial, where he purportedly gave impermissible expert testimony. The testimony was offered

to interpret wiretapped phone calls, particularly to explain code language used in drug trafficking.

Olivo explained that he learned the identities of the individuals on the phone calls through the efforts

of his colleagues and other law enforcement agents. He also gave his interpretation of the code

words on the phone call. On cross-examination, defense counsel asked Olivo for his interpretation

of additional statements made on the call and solicited testimony about additional portions of his

investigation that explained how he knew the context of the calls.

        Before deliberations, the district court instructed the jury that an expert opinion is not binding

and that the jury could disregard it entirely.

                                                   D.

        Garcia moved to suppress the contents of two wiretaps, one in El Paso, Texas and one in

Dayton, Ohio. The district court denied the El Paso motion on substantive grounds and denied the

Dayton motion as moot because the government pledged not to use its contents during Garcia’s trial.

The contents of the Dayton wiretap were not timely sealed upon the expiration of the order

permitting the recording, in violation of 18 U.S.C. § 2518(8)(a). Accordingly, the government

conceded that the contents of the wiretap were inadmissible and the motion was denied as moot.

Garcia now complains that the government improperly used the untimely sealed wiretap.

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       During the trial, the prosecutor, without objection from defense counsel, asked Lucas if he

ever conducted surveillance at a particular location in Kentucky. Lucas said he did conduct

surveillance there and testified about what the surveillance and his investigation revealed about

Garcia and his associates at that location.

       Defense counsel asked to approach the bench and inquired if this information came from the

untimely sealed wiretap. The prosecutor stated he did not know but if it did then the information

would be permissible derivative evidence. The district court agreed with the prosecutor and said,

“I’ll make no ruling. In truth, there’s no objection. [Defense counsel] just approached to make an

inquiry.” The district court told the prosecutor to rephrase his questions to avoid soliciting answers

that paraphrase the contents of the untimely sealed wiretap.

       Later, Lucas testified that he learned that Garcia’s brother was killed in Mexico and that

Garcia and his associates were going to travel there. Defense counsel objected to this testimony on

foundational and prejudicial grounds under Fed. R. Evid. 403. Defense counsel was afraid that the

testimony would suggest Garcia was going to avenge his brother’s murder and that was why he was

arrested. The prosecutor stated he was surprised by Lucas’s answer and that he did not want Lucas

to discuss the untimely sealed wiretap. The district court sustained the objection on foundational

grounds and instructed the government to avoid using information from the untimely sealed wiretap.

Then the government moved on to another line of questioning and no instruction was requested or

given to the jury concerning this portion of Lucas’s testimony.

       The final portion of Lucas’s testimony that Garcia argues revealed the contents of the

untimely sealed wiretap occurred when the government asked Lucas if he was able to determine

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where Garcia was living in April 2007. Lucas said he learned where Garcia lived through

“surveillance” and gave Garcia’s address. Defense counsel objected and stated that police reports

showed that law enforcement discovered Garcia’s address from the untimely sealed wiretap. The

prosecutor stated that officers may have learned the address from surveillance and the wiretap. The

district court instructed the attorneys to resolve the dispute during the afternoon recess and if they

could not then they should approach the bench.

        After the afternoon recess the parties did not raise the issue again. The prosecutor asked a

question about the search warrant executed at Garcia’s address and Lucas answered without

objection.

                                                  IV.

        We review “all evidentiary rulings – including constitutional challenges to evidentiary rulings

– under the abuse-of-discretion standard.” United States v. Schreane, 331 F.3d 548, 564 (6th Cir.

2003). Potential violations of the Confrontation Clause are reviewed de novo, United States v.

Robinson, 389 F.3d 582, 592 (6th Cir. 2004), and are “subject to harmless error review.” Jordan v.

Hurley, 397 F.3d 360, 363 (6th Cir. 2005). But when no objection is made during trial,

Confrontation Clause violations are reviewed for plain error. United States v. Martinez, 588 F.3d

301, 313 (6th Cir. 2009). We have the “‘discretion to remedy [plain] error—which ought to be

exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.’” Id. at 313-14 (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)) (second

alteration in original).



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       Also, when there is no objection to expert testimony at trial, we review for plain error.

United States v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007).

                                                 V.

                                                 A.

       Garcia argues that his Confrontation Clause rights were violated when the district court failed

to exclude testimony from law enforcement witnesses that were based on out-of-court statements

from CIs. However, with respect to the evidence to which Garcia did not object, there were no

plainly erroneous statements. With the exception of the testimony that identified Garcia’s alias, the

statements were offered for non-hearsay purposes and constituted background information, which

does not violate the Confrontation Clause. United States v. Cromer, 389 F.3d 662, 676 (6th Cir.

2004). The testimony about Garcia’s alias did not affect his substantial rights because it was

cumulative.

       To the extent that Lucas’s non-hearsay statements offered a legal conclusion in violation of

Torres when he used the terms “coconspirators” and “drug trafficking,” it cannot be said that the

error was obvious. We allow the district court a “wide degree of discretion” but not an “unlimited”

amount “in admitting or excluding testimony which arguably contains a legal conclusion.” Torres,

758 F.2d at 150. “[A]mbiguity is resolved by determining whether the terms used by the witness

have a separate, distinct and specialized meaning in the law different from that present in the

vernacular.” United States v. Ahmed, 472 F.3d 427, 434 (6th Cir. 2006) (citation, quotation marks,

and alteration omitted). Since a witness can provide “non-technical expressions of [his] informed

opinion,” it was not obvious that Lucas’s testimony contained inadmissible legal conclusions. Id.

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       Garcia states, without more, that Lucas’s other statement about the recipients of the drugs

in the controlled drug buy “lack[ed] foundation and constitute[d] hearsay,” was “more prejudicial

than probative under Fed. R. Evid. 403,” and violated Garcia’s Confrontation Clause rights. “[I]t is

a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived.” United States v. Elder, 90 F.3d 1110, 1118

(6th Cir. 1996) (citation and quotation marks omitted). Accordingly, we decline to consider this

argument.

                                                 B.

       Garcia further argues that the district court abused its discretion when it allowed Barnett to

give testimony, over his hearsay objection, that connected Garcia to the drug ledger. On appeal, he

also says this testimony violated his Confrontation Clause rights. It cannot be said that the district

court made a “clear error of judgment” when it allowed the testimony because before the witness

gave his testimony the district court gave the jury an instruction that limited the testimony to only

its non-hearsay use, i.e., background information. And the law assumes “that jurors follow their

instructions.” Richardson v. Marsh, 481 U.S. 200, 206 (1987). Accordingly, the district court did

not abuse its discretion.    And since the testimony was limited to its non-hearsay use the

Confrontation Clause does not apply. Cromer, 389 F.3d at 676.

       Concerning Olivo’s testimony regarding Medina, the district court ruled that the evidence

was non-hearsay background information. This was not an abuse of discretion. And there is no

Confrontation Clause violation because the testimony was non-hearsay evidence. Id.



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                                                  VI.

        Garcia now argues that Olivo was improperly allowed to be both a fact and expert witness

while interpreting wiretapped phone calls. He cites United States, v. Dukagjini, 326 F.3d 45 (2d Cir.

2003), for authority that admission of this testimony was plain error.

        However, we have “allowed police officers to testify as expert witnesses about criminal

activity since knowledge of such activity is generally beyond the understanding of the average

layman.” United States v. Smith, 601 F.3d 530, 539 (6th Cir. 2010) (quotation marks omitted). And

when the district court provides a cautionary jury instruction for this type of testimony, “such expert

testimony by police officers is not unfairly prejudicial . . . .” United States v. Bender, 265 F.3d 464,

472 (6th Cir. 2001). An instruction that “told the jurors that they could reject the opinions given and

that they should consider how the witnesses reached their conclusions, [is] adequate to guard against

the risk of confusion inherent when a law enforcement agent testifies as both a fact witness and as

an expert witness.” United States v. Ham, 628 F.3d 801, 806 (6th Cir. 2011) (citation and quotation

marks omitted).

        Like the Second Circuit, we recognize that “[w]hen a court certifies that a witness is an

expert, it lends a note of approval to the witness that inordinately enhances the witness’s stature and

detracts from the court’s neutrality and detachment.” Johnson, 488 F.3d at 697. Accordingly, we

do not allow the district court to certify a witness as an expert in the presence of the jury. Id.

        Here, the district court did not certify Olivo as an expert in the presence of the jury. And

since the district court gave an instruction like the one described in Ham in its final instructions to

the jury, there were no prejudicial evidentiary errors in this case, and evidence of Garcia’s guilt was

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strong, permitting Olivo’s testimony was not plain error. Cf. United States v. Vasquez, 560 F.3d 461,

470-71 (6th Cir. 2009); United States v. Martin, 520 F.3d 656, 659-60 (6th Cir. 2008). As for the

testimony that was elicited on cross-examination concerning Olivo’s interpretation of a conversation

on the wiretap, Garcia cannot “complain on appeal of errors that he himself invited or provoked.”

Cromer, 389 F.3d at 679 n.11 (citation and quotation marks omitted). Finally, by saying how he

identified the parties on the phone call the agent was giving non-hearsay background information,

which does not violate the Confrontation Clause. Id. at 676. Accordingly, there was no plain error.

                                                 VII.

        Garcia argues that Lucas improperly testified about the contents of an untimely sealed

wiretapped recording in violation of 18 U.S.C. § 2518(8)(a). He asserts that his pretrial motion that

was dismissed as moot preserved his objection to this evidence. However, during the trial the district

court noted on one occasion at the bench that there was no objection from defense counsel when

testimony was offered that related to the untimely wiretapped recordings, so counsel was on notice

that his pretrial objections had to be renewed. Lawn v. United States, 355 U.S. 339, 353 (1958),

holds that “generally” a pretrial motion to suppress preserves the point and makes it unnecessary to

object at trial; but it also holds that this “rule is one of practice and is not without exceptions, nor

is it to be applied as a hard-and-fast formula to every case regardless of its special circumstances.”

Here, because counsel’s pretrial objection was denied as moot, and because counsel was on notice

that he had to renew his objection at trial, the pretrial objection did not preserve the point, and we

review only for plain error.



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       A violation of § 2518(8)(a) requires the contents of a wiretap recording to be excluded,

United States v. Amanuel, 615 F.3d 117, 128-29 (2d Cir. 2010), but:

       the prohibition on the use of improperly sealed evidence in sworn testimony will not
       preclude the use of such evidence either to pursue an investigation or to proveup the
       fruits of such investigation at trial. In other words, the prohibition insubsection
       2518(8)(a) on derivative use at trial of improperly sealed tapes is not to be applied
       strictly to prohibit use of all evidence that can be connected through a chain of
       causation to a wiretap tainted by improper sealing.

Id. at 128 (citation and quotation marks omitted). “[T]he fruits derived from [untimely sealed

wiretaps] may not be suppressed.” Id. at 129.

       The testimony about the surveillance in Kentucky was clearly derivative fruit of the

subsequent investigation, not the wiretaps, because Lucas testified that he witnessed the drug

meeting about which he as testifying. Additionally, the testimony about Garcia’s address was

derivative information because it was used to obtain a search warrant. Accordingly, it was not an

obvious error to admit either portion of testimony. Moreover, even if error, admission of the

testimony did not affect Garcia’s substantial rights. The testimony helped to establish that Garcia

was in the drug trafficking business, a fact amply established by other evidence at trial.

       Garcia did make foundational and prejudicial objections at trial to the portion of Lucas’s

testimony that concerned Garcia’s trip to Mexico. On appeal he argues that this information was

shared in violation of § 2518(8)(a). Just as Confrontation Clause objections made on appeal are

reviewed for plain error when the objection is not made at trial, Martinez, 588 F.3d at 313, we

review § 2518(8)(a) claims for plain error when they are made on appeal but not at trial.




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       After making his objection on foundational grounds, defense counsel argued at trial that he

was concerned that prejudicial information about a revenge murder in Mexico would come from the

witness and not, as Garcia argues on appeal, that the jury would infer that Garcia was fleeing. In

fact, the prosecutor was concerned that Lucas would discuss the untimely sealed wiretap and the

district court instructed him to avoid that issue. Subsequently, the prosecutor moved on to another

line of questioning. Since it is not obvious that Lucas revealed the contents of the untimely sealed

wiretap in this portion of testimony there is no plain error on this issue.

                                                VIII.

       For the foregoing reasons, we VACATE Garcia’s conspiracy conviction under 21 U.S.C. §

846, AFFIRM his other convictions, and REMAND to the district court for proceedings consistent

with this opinion.




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