                                                                          FILED
                           NOT FOR PUBLICATION                             JAN 06 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10012

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00915-RCC-
                                                 CRP-4
  v.

PAUL L. WILLIAMS,                                MEMORANDUM*

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10017

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00915-RCC-
                                                 CRP-1
  v.

MIKADO NABOB THOMPSON,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Raner C. Collins, Chief District Judge, Presiding

                     Argued and Submitted December 8, 2014
                            San Francisco, California

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

      Appellant Mikado Thompson was the leader of a multi-state marijuana

trafficking organization, and Appellant Paul Williams was a long time participant

in the organization. A jury convicted Thompson of running a continuing criminal

enterprise (“CCE”), and convicted Williams of conspiring to distribute marijuana.

Williams was sentenced to 121 months. Thompson challenges the validity of his

CCE conviction. Williams challenges his conviction and sentence.

      Because the parties are familiar with the facts, we recite them only as

necessary to illuminate our disposition. We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

A.    Thompson

      1.     To convict on a CCE charge, the government must prove, among

other elements, that the defendant (1) engaged in a continuing series of narcotics

offenses and (2) organized, supervised, or managed five or more persons in the

course of the enterprise. See United States v. Fuchs, 218 F.3d 957, 962-63 (9th

Cir. 2000); United States v. Sterling, 742 F.2d 521, 525 (9th Cir. 1984).



       **
          The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.

                                          2
Thompson argues that the indictment charging him with the CCE violation was

constructively amended by the introduction of evidence at trial of uncharged

predicate offenses and supervisees who were not disclosed to the grand jury.

Thompson’s argument is foreclosed under our precedents because there is no

requirement that the government list in the indictment the continuing series of

predicates or name the supervisees. See id. at 526 (“[T]here is no legal

requirement that the violations which make up the continuing series be specifically

listed in the indictment.”); United States v. Zanzucchi, 892 F.2d 56, 58 (9th Cir.

1989) (“[T]here is no requirement that an indictment or a bill of particulars identify

the supervisees in a CCE case.”).

      2.     Thompson argues that the verdict must be set aside because the jury

may have based its verdict on predicate offenses that all occurred outside the five-

year limitations period. So long as the jury relied on one predicate offense that

occurred within the limitations period, Thompson’s CCE conviction is valid.

United States v. Baker, 10 F.3d 1374, 1410 (9th Cir. 1993), overruled in part on

other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000).

      The district court instructed the jury that, in order to convict Thompson of

the CCE charge, it had to find (1) Thompson guilty of the conspiracy charge to

distribute marijuana, charged in count two of the second superseding indictment,


                                          3
and (2) that the conspiracy constituted one offense in the continuing series of

narcotics violations Thompson committed. The jury convicted Thompson of both

the CCE charge and the conspiracy charge. It is established law “that title 21

conspiracies may serve as predicate offenses under the CCE statute.” United States

v. Hernandez-Escarsega, 886 F.2d 1560, 1571 (9th Cir. 1989). This is so even

when, as here, the conspiracy charge is subsequently dismissed to protect a

defendant against double jeopardy. Id. at 1572, 1582 (affirming a CCE conviction

based upon the predicate conspiracy convictions the panel vacated). Having

reviewed the record, there is substantial evidence that the conspiracy lasted well

into the limitations period, whether measured by the date of the first indictment or

the second superseding indictment. Therefore, the statute of limitations does not

undermine Thompson’s CCE conviction.

      3.     Thompson argues that his conviction must be vacated because of the

risk that the jury concluded that Thompson supervised five persons (out of 19

possible persons) whom Thompson claims were per se ineligible to be counted as

supervisees. We reject this argument because, viewing the evidence in the light

most favorable to the prosecution, a rational trier of fact could have found that

Santos-Granados, Pacheco, Sims, and LaRocca were managed by Thompson, as

that term is defined under our precedents. See United States v. Montgomery, 384


                                          4
F.3d 1050, 1062 (9th Cir. 2004) (standard of review); United States v. Delgado, 4

F.3d 780, 785 (9th Cir. 1993) (describing the management requirement). Contrary

to Thompson’s argument, the government did not suggest that Cogan was

Thompson’s supervisee, and there is no reason to believe the jury counted him as

such.

        4.    Thompson argues that it was plain error for the district court not to

instruct the jury that a person’s status as a conspirator in the marijuana trafficking

organization does not necessarily mean that Thompson organized, supervised, or

otherwise managed that person. Even assuming the clarification Thompson sought

is a correct statement of the law, the need for a sua sponte instruction on the issue

was not plain.

        “An error is plain if it is clear or obvious under current law. An error cannot

be plain where there is no controlling authority on point and where the most

closely analogous precedent leads to conflicting results.” United States v. De La

Fuente, 353 F.3d 766, 769 (9th Cir. 2003) (internal citations omitted). In

Hernandez-Escarsega, we held that a district court does not generally have to

define for a jury the terms “organizer,” “supervisor,” or “manager” of a criminal

enterprise. 886 F.2d at 1571-72. While United States v. Jerome, 942 F.2d 1328,

1331 (9th Cir. 1991), requires a clarifying instruction on the management


                                            5
requirement when there is the potential for juror confusion, the default rule remains

that no instruction is necessary. Thus, it was not “clear or obvious under current

law” that a clarifying instruction had to be given. There was no plain error.

B.    Williams

      1.       Williams argues the district court improperly denied him a Franks1

hearing to challenge the wiretap of his cellular phone. Reviewing de novo, United

States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir. 1985), we conclude that the

wiretap affiant did not omit material information from the wiretap affidavit. First,

the affiant disclosed the raid on the Camino de Oeste house in the wiretap affidavit,

and he specifically disclosed the fact that Pacheco and the brown Impala had been

seen on multiple occasions at the Star Pass house. Thus, it does not seem that the

government omitted any information.

      Second, even if the affiant could have disclosed more information regarding

the marijuana suppliers, that omission was immaterial because the purpose of the

wiretap was not limited to establishing the source of the marijuana. Viewing “[t]he

necessity for the wiretap . . . in light of the government’s need . . . to develop an

effective case against those involved in the conspiracy,” we conclude that the

“affidavit contains ‘reasonable detail’ and is sufficiently case-specific to pass

      1
          See Franks v. Delaware, 438 U.S. 154 (1978).

                                            6
muster under [our] precedent[s].” United States v. Garcia-Villalba, 585 F.3d 1223,

1228, 1229 (9th Cir. 2009). Therefore, Williams was not entitled to a Franks

hearing.

      2.     The district court properly consolidated Williams’ and Thompson’s

trial. The jury’s individualized assignment of responsibility to Williams and

Thompson regarding drug quantities “is highly indicative of its ability to

compartmentalize the evidence” against them. See United States v. Stinson, 647

F.3d 1196, 1205 (9th Cir. 2011) (internal quotation marks omitted). Moreover, the

district court’s limiting instruction to consider the defendants separately “more

than sufficient[ly] guard[ed] against the possibility of prejudice to [Williams].”

United States v. Decoud, 456 F.3d 996, 1009 (9th Cir. 2006) (internal quotation

marks omitted).

      3.     The district court did not abuse its discretion by allowing the

government’s substitute Jamaican patois expert to testify at trial. Although

Williams did not receive the notice he was due under Federal Rule of Criminal

Procedure 16, he had in his possession before trial transcripts of the phone calls

that were materially identical to those authenticated by the substitute expert at trial.

Williams thus had the tools to challenge the accuracy of the substitute expert’s

translations; he simply did not do so convincingly. See United States v. Mendoza,


                                           7
244 F.3d 1037, 1046-47 (9th Cir. 2001) (upholding a district court’s ruling to allow

a substitute expert to testify despite a Rule 16 violation where the defendant knew

the bases for both experts’ testimony prior to trial).

      4.       Nor did the district court abuse its discretion by qualifying the

substitute expert as an expert based on his experience speaking Jamaican patois.

See United States v. Abonce-Barrera, 257 F.3d 959, 964 (9th Cir. 2001). Federal

Rule of Evidence 702 explicitly allows an expert to be qualified on the basis of his

experience.

      5.       Williams argues it was error not to instruct the jury on multiple

conspiracies. This argument is meritless. The district court gave the requested

instruction.

      6.       It is undisputed that the district court violated Williams’ Fifth and

Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000),

when the court, and not a jury, determined the quantity of marijuana for which

Williams was responsible. Because the government raised the Apprendi violation

for the first time on appeal, we review for plain error, see United States v.

Gonzalez-Aparicio, 663 F.3d 419, 426-27 (9th Cir. 2011), and we find none.

      Williams was sentenced to 121 months pursuant to 21 U.S.C. §

841(b)(1)(B)(vii). That clause provides for a sentence of five to forty years where


                                            8
the defendant conspires to possess with the intent to distribute “100 kilograms or

more of a mixture or substance containing a detectable amount of mari[j]uana.” §

841(b)(1)(B)(vii); see also 21 U.S.C. § 846. The record establishes beyond all

doubt that Williams was responsible for at least 100 kilograms of marijuana.

      In his formal objections to the presentence investigation report, Williams

argued that “the evidence presented at trial and apparently believed by the jury”

showed that he was responsible for 100 to 400 kilograms of marijuana. This

concession is not unlike the concession made by defense counsel in United States

v. Buckland, which removed “all doubt that the Apprendi error . . . did not affect

the outcome of the proceedings.” 289 F.3d 558, 569-70 (9th Cir. 2002) (en banc).

      Moreover, the testimony of Williams’ conspirators directly linked Williams

to more than 100 kilograms of marijuana. Pacheco testified he delivered

approximately 56.7 kilograms of marijuana to Williams on one occasion and later

delivered another 68.39 kilograms. Pacheco also sold approximately 113.8

kilograms of marijuana to Thompson, which he delivered to the Star Pass stash

house that Williams ran. In addition to these purchases, Williams and Pacheco

aided in the recovery and delivery of approximately 68 kilograms of marijuana that

had been locked in a Honda.




                                          9
      Bruce Oliver was a truck driver who ran bulk loads of marijuana from

Tucson to central Florida. Oliver testified that he received three loads from

Williams. The combined weight of those three loads was at least 163 kilograms.

      Whether we look to Williams’ counsel’s concession or to the evidence of

Williams’ direct involvement with marijuana transactions, we are convinced that

Williams was responsible for at least 100 kilograms of marijuana. That amount of

marijuana qualified Williams for a sentence in the range established by §

841(b)(1)(B)(vii).2 Therefore, because the Apprendi violation did not affect

Williams’ substantial rights, there was no plain error and Williams’ sentence is

affirmed. See Buckland, 289 F.3d at 569-70.

AFFIRMED.




      2
         We have evaluated the Apprendi violation in light of the sentencing clause
actually applied by the district court. However, as the government argues,
Williams’ sentence of 121 months fell within the range established by 21 U.S.C. §
841(b)(1)(C)--i.e., “a term of imprisonment of not more than 20 years”--as well. A
defendant is eligible for a sentence under that clause upon proof of 50 kilograms of
marijuana.

                                         10
