                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5181


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL LAWRENCE WHITE, a/k/a Big Boy,

                Defendant - Appellant.



                             No. 12-4158


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

VICTOR ANDRE THOMAS, a/k/a Flak, a/k/a Flat,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cr-00491-RDB-12; 1:10-cr-00491-RDB-3)


Argued:   January 30, 2013                  Decided:   April 3, 2013


Before MOTZ, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.


ARGUED: Ruth J. Vernet, RUTH J. VERNET, ESQ., LLC, Rockville,
Maryland; Gary Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC,
Baltimore, Maryland, for Appellants.  Christopher John Romano,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      In       2010,       a       Harford,        Maryland,       drug         trafficking

investigation yielded the arrests of Appellants Victor Thomas

and     Michael    White. 1          Thomas       and     White    were       charged    with

conspiracy to distribute cocaine and cocaine base, in violation

of 21 U.S.C. § 846, and possession with intent to distribute the

same,     in   violation       of   21     U.S.C.       § 841(a)(1).          Additionally,

Thomas     was    charged      with      felony     possession     of     a    firearm,   in

violation of 18 U.S.C. § 922(g)(1).

      Following        a   four-day        jury    trial,    Thomas     and     White    were

convicted on both the conspiracy charge and the drug charge; a

hung jury resulted on Thomas’s gun charge.                        Thomas and White now

appeal their convictions on multiple grounds.                           Because we find

their arguments lacking in merit, we affirm.



                                              I.

      Thomas      and      White     put    forth       several    challenges       to    the

evidence introduced at trial.                     One of these issues they raised

below; the others they did not.                    We review each alleged error in




      1
       Twelve other individuals were also apprehended. Eleven of
them pled guilty. The twelfth, Rochelle Stokes, was tried with
Thomas and White but was acquitted via a Rule 29 motion for
judgment of acquittal at the end of the government’s case.



                                              3
keeping with the preservation diligence, or lack thereof, that

Thomas and White exercised.



                                          A.

     Thomas and White first allege that the district court erred

in declining to suppress evidence retrieved via wiretap.                       We

review the factual findings underlying a motion to suppress for

clear error; the legal conclusions we review de novo.                      United

States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008).                       In every

instance, we view the evidence in the light most favorable to

the party that prevailed below—in this instance, the government.

United States v. Jamison, 509 F.3d 623, 628 (4th Cir. 2007).

     The Harford County Narcotics Task Force (HCNTF) conducted

the drug investigation leading to the apprehension of Thomas and

White.   As part of its efforts, the HCNTF obtained authorization

to wiretap a cell phone number connected to Thomas.                     The HCNTF

monitored this number from April 26, 2010, to May 5, 2010, and,

during that time, intercepted nearly two thousand phone calls.

Thomas   and   White    maintain      that      the    HCNTF’s    interceptions

violated both federal law and attorney-client privilege.

     Governmental wiretaps must comport with Title III of the

Omnibus Crime Control and Safe Streets Act (Omnibus Act), 18

U.S.C.   § 2510-2522,       a     statute      that    attempts    to     balance

individuals’   right   to       privacy    against    the   beneficial    inroads

                                          4
that electronic monitoring can provide in fighting crime, United

States v. Clerkley, 556 F.2d 709, 712 (4th Cir. 1977).                         Relevant

to this case, the Act requires the government to minimize its

interceptions where possible to avoid monitoring communications

that are nongermane to a suspected offense.                  18 U.S.C. § 2518(5)

(“Every order [authorizing a wiretap] . . . shall be executed as

soon as practicable, [and] shall be conducted in such a way as

to    minimize    the   interception     of    communications       not    otherwise

subject to interception under this chapter . . . .”).

       Thomas and White assert that the HCNTF violated the Omnibus

Act by failing to minimize any of its interceptions on Thomas’s

phone.    They also aver that because one of the intercepted calls

was placed to an attorney, the HCNTF violated attorney-client

privilege.        Notably,     Thomas   did    not   speak   with    the       attorney

during   the     call   that   Thomas    and    White    reference;       he    left   a

voicemail message in which he simply inquired about a court date

for a civil case and asked the attorney to return his call.

When Thomas asked the attorney to return his call, however, he

provided a phone number different from the number that the HCNTF

was monitoring.

       Based on these alleged violations, Thomas and White moved

pre-trial to suppress all evidence “derived from” the wiretaps.

The    district    court     denied     the    motion,    concluding       that     the

wiretap on Thomas’s phone lacked “any minimization issues.”

                                          5
                                            1.

     We   think     it     pertinent       to    note    at     the     outset   that    the

government has not clearly indicated whether the HCNTF indeed

minimized    any     of    its     interception         on    Thomas’s       phone.       In

responding     to        pre-trial       motions,        the        government        simply

maintained    that       given     the   nature     of       the    investigation,       the

HCNTF’s      interceptions           comported          with        the      minimization

requirement of the Omnibus Act.                   Furthermore, at the pre-trial

motions hearing, when the court queried the government, it again

responded    in     a     manner    that    lacked       any       firm    indication     of

minimization:

     I’m not in a position to advise the court at this
     point.    I asked the detective were in fact calls
     minimized and his response to me was there may be
     calls where portions of them were minimized. I can’t
     speak with any more specificity than that. There were
     calls I don’t think were minimized in their entirety.
     There may have very well have been calls that were
     minimized in part.

The government’s brief here is no more enlightening.                             In fact,

it noticeably lacks any delineation of minimization efforts or

explicit denial of Thomas and White’s allegation that “out of

thousands of calls not one was minimized.”

     We are not unaware of the statutory framework that exists

for addressing alleged violations of the Omnibus Act.                                 See 18

U.S.C.    § 3504(a)(1)       (providing          that    when      an     aggrieved    party

alleges that “evidence is inadmissible because it is the primary


                                            6
product of an unlawful act [under the Omnibus Act] or because it

was    obtained     by     the   exploitation           of     an     unlawful       act,   the

opponent of the claim shall affirm or deny the occurrence of the

alleged unlawful act”); United States v. Apple, 915 F.2d 899,

905 (4th Cir. 1990) (recognizing that if allegations brought

under § 3504(a)(1) lack specificity, the government can respond

with   a    general      denial).      Because          Thomas       and    White    have   not

contested the adequacy of the government’s response, however, we

decline to rule on whether such response was sufficient as a

matter     of    law.     Rather,     we       simply    document          the    government’s

persistent equivocation on this point and note that it forces us

to proceed, for the sake of argument only, on the assumption

that Thomas and White’s allegation of zero minimization is true.

Even assuming the truth of this allegation, however, we find no

error in the admission of the wiretap evidence.



                                               a.

       Assessing        governmental       compliance          with        the    minimization

mandate     of     the    Omnibus     Act          is   not     a    formulaic        process.

Reasonableness is the overarching standard, but the facts of

each     case     heavily    impact        a       determination           of     whether   the

government’s behavior was in fact “reasonable.”                                  Clerkley, 556

F.2d   at    716   (“In     testing    compliance             with    [the       minimization]

requirement, the courts have proceeded on a case-by-case basis,

                                               7
invoking    a    standard       of     reasonableness.”).                 We    employ          three

factors in our evaluation: “(1) the nature and scope of the

alleged    criminal          enterprise;       (2)    the     government’s         reasonable

expectation       as     to     the     content        of,        and    parties       to,        the

conversations; and (3) the degree of judicial supervision while

the wiretap order is being executed.”                       Id.



                                               b.

     Here,      we     conclude       that    regardless          of    whether     the         HCNTF

minimized       any    of     its     interceptions          on     Thomas’s       phone,         it

complied    with       the    mandate     in    the        Omnibus      Act.       First,         the

“nature and scope” of Thomas’s and White’s criminal activities

weighs in favor of unrestricted interceptions.                                 This Court has

previously recognized that “[w]hen law enforcement officials are

confronted with large, far-flung and on-going criminal activity

involving multiple parties, they are afforded greater latitude

in   conducting        wiretaps.”            Id.;     see     also       United    States          v.

Quintana,       508    F.2d     867,     874        (7th    Cir.        1975)    (“Large          and

sophisticated         narcotics       conspiracies          may     justify      considerably

more interception than would a single criminal episode.”).                                       The

HCNTF     was    investigating          an     elaborate          drug     conspiracy            that

included    at       least     thirteen      individuals.                Without       a    doubt,

Thomas’s and White’s conduct was “far-flung,” “on-going,” and

“involve[ed]      multiple          parties.”         Clerkley,          556    F.2d       at    716.

                                               8
Thus, the HCNTF had “greater latitude” in executing its wiretap

than it might have otherwise had if the investigation involved

fewer individuals and isolated crime.                           We conclude therefore

that       a   ten-day    unrestricted        wiretap     on     Thomas’s      phone,   when

examined in light of the first reasonableness factor, satisfied

the minimization requirements of the Omnibus Act.                             Clerkley, 556

F.2d at 716-17 (“[T]he legitimate investigation of conspiracies

may    necessitate          the       interception        of     all     or    almost   all

communications           over     a   given     period     of     time.”)       (collecting

cases).

       Second,      we    consider      the    HCNTF’s     “reasonable         expectation”

regarding        the     “content      of,    and    parties     to”     the    anticipated

interceptions.           Id. at 716.         Here, we are concerned with whether

the HCNTF had “sufficient advance knowledge” such that it could

“tailor [its] minimization efforts.”                     Id. at 717.

       Outside      of    excerpts      from       the   order    that    authorized     the

wiretap on Thomas’s phone, 2 the record provides little assistance

on this point.            Nevertheless, we again conclude that the HCNTF

was justified in not minimizing its interceptions.                             In relevant

part, the order states,

       2
       The excerpts that Thomas and White have provided here are
from an order that authorized a wiretap for another defendant.
Regardless, because the government has cited to these excerpts
in its brief, we rely on them as accurate reflections of the
authorizing order for Thomas’s phone.


                                               9
      Due to the nature of this electronic surveillance
      investigation, . . .  and  the   fact   that  personal
      conversations during intercepted calls may frequently
      be interwoven with or precede conversations of a
      criminal nature, initially, for the first three days,
      all calls intercepted will be both monitored and
      recorded for approximately three (3) minutes before
      spot monitoring will be utilized.     . . . After the
      first three days, plant operators are to consider the
      previously established patterns of conversations, if
      any, and the identities of the conversants in
      determining when a conversation is of a non-pertinent
      nature. 3

Although this excerpt does not provide explicit indication of

the       “advance        knowledge”     possessed        by    the    HCNTF,      its

authorization        to    intercept     the    initial    three   minutes   of    all

calls for the first three days implies a less-than-robust level

of “advance knowledge.”             And this implication is bolstered by

the   order’s    grant       of   full   discretion       to   plant   operators   in

distinguishing        which       conversations      were      pertinent     to    the

investigation.        These factors lead us to again conclude that to

the extent the HCNTF failed to minimize any of its interceptions

on Thomas’s phone, such action was reasonable.




      3
        The record lacks any quotes from the applications and
affidavits on which the authorizing judge based his finding of
probable cause for issuance of the order.    We note, however,
that Thomas and White have not contested the district court’s
pre-trial finding that the order was supported by “ample
probable cause.” Accordingly, we rely on what the order implies
regarding the facts that necessitated its issuance, viewing it
in a manner that favors the government.  See Jamison, 509 F.3d
at 628.



                                           10
       Finally, we address the third factor, judicial supervision.

As to this step, the record is silent.                           We may still conclude,

however, that the HCNTF’s presumably unrestricted interceptions

were       reasonable.             While       the      Omnibus        Act     permits       “the

[authorizing]            judge     to    ask      for       interim    reports        from   the

investigating agents,” it does not require that the judge do so.

Quintana, 508 F.2d at 875 (noting that “[t]he statute permits

but    does   not        require”       interim       reports);       see    also   18   U.S.C.

§ 2518(6)      (“Whenever           an     order        authorizing         interception      is

entered pursuant to this chapter, the order may require reports

to    be   made     to    the    judge     who     issued      the    order    showing       what

progress      has    been       made     toward       achievement      of    the    authorized

objective and the need for continued interception.                              Such reports

shall be made at such intervals as the judge may require.”).

Accordingly, even assuming that the HCNTF provided no progress

reports to the authorizing judge, its unrestricted interceptions

were not per se unlawful.                 Cf. Clerkley, 556 F.2d at 718 (“Where

the    authorizing         judge    required          and    reviewed       interim    reports,

courts have been more willing to find a good faith attempt at

minimization.” (citing Quintana, 508 F.2d at 875)).

       Having reviewed the limited record and the circumstances

under which the HCNTF conducted its wiretap on Thomas’s phone,

we conclude that the HCNTF acted reasonably, even if it failed

to minimize any of its interceptions.                           Simply put, Thomas and

                                                 11
White have produced no evidence that compels us to find error.

And although the government’s evidence is slim, we must examine

it in a manner that inures to its benefit.                   Jamison, 509 F.3d at

628.        Accordingly,    we    hold     that    the   district     court   properly

denied Thomas and White’s motion to suppress the government’s

wiretap evidence based on their contention that the HCNTF failed

to minimize its interceptions.



                                            2.

       We    turn   now    to    Thomas    and    White’s   allegation        that   the

government       violated        Thomas’s        attorney-client       privilege     by

intercepting        his   voicemail       message.       Evidentiary    rulings      are

subject to harmless error review.                    See United States v. Cole,

631 F.3d 146, 154 (4th Cir. 2011) (“[A] conviction will not be

overturned on account of an erroneous evidentiary ruling when

that error is deemed harmless within the meaning of Federal Rule

of Criminal Procedure 52(a).”).               Under this standard, “to find a

district court’s error harmless, we need only be able to say

with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.”                      United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (quoting United States

v. Heater, 63 F.3d 311, 325 (4th Cir. 1995)) (internal quotation

marks       omitted).      Here,    we     conclude      that   any    violation     of

                                            12
Thomas’s     attorney-client        privilege     was     harmless;        thus,   we

decline to rule on whether the district court properly denied

Thomas and White’s suppression motion on this basis.                       See United

States v. Banks, 482 F.3d 733, 741 (4th Cir. 2007) (“We need not

decide whether the district court erred . . . because we hold

that any error would be harmless . . . .”).

     Thomas and White allege,

          Given the obvious importance of the call, as well
     as the fact that the interception occurred early in
     the investigation, there is a substantial probability
     that   evidence  derived   from  the   privileged  and
     indisputably important call was improperly used as a
     basis for further wiretaps or was introduced at
     trial . . . .

And the government counters,

          [W]hile   the   call   was  pertinent  from   the
     standpoint that Thomas provided a different number
     than the one he was calling from, no conversations on
     the other phone number were ever obtained.    The only
     line that was intercepted by investigators with regard
     to Thomas was the number from which he placed the call
     to the attorney’s [voicemail] system.

     The    government       has   indicated    that    it   did     not    intercept

calls on the alternate number given by Thomas, and Thomas and

White   have      provided    no   evidence    that     leads   us    to     conclude

otherwise.     Moreover, Thomas’s inquiry related to a civil case,

not this criminal matter.             Accordingly, we conclude that any

violation    of    Thomas’s    attorney-client        privilege      was    harmless,

and we decline to reverse Thomas’s and White’s convictions on



                                        13
the ground that the government’s wiretap evidence should have

been suppressed.



                                           B.

      Next, we consider the three evidentiary claims that Thomas

and White failed to raise below:                     (1) that admission of their

criminal      history    under    Federal       Rule      of   Evidence   404(b)       was

unduly prejudicial, (2) that Detective Brandon Underhill lacked

sufficient credentials for portions of his expert testimony, and

(3)   that    Underhill       testified    both      as    a   fact   witness    and    an

expert      witness     without    appropriate            safeguards    against     jury

confusion. 4

      Because Thomas and White failed to preserve these issues,

our       “authority     to     [provide        a]     remedy . . . is          strictly

circumscribed.”         Puckett v. United States, 556 U.S. 129, 134

(2009).      Indeed, when a party does not inform a trial court of

an error at the time that it occurs, the party is barred from


      4
       The table of contents and facts section of Thomas and
White’s brief indicates their belief that other law enforcement
officers also provided expert testimony regarding matters about
which they had not been qualified as experts, and that the
district court erred in admitting such testimony.        Because
Thomas and White failed to develop this apparent argument in the
body of their brief, we decline to consider it here.    See Fed.
R. App. P. 28(a)(9)(A) (requiring the argument section of an
appellant’s   opening   brief   to   include  the   “appellant’s
contentions and the reasons for them”).



                                           14
raising that issue on appeal, id. at 135, unless it can show

that    an   error        “(1)       was     made,    (2)     is     plain    (i.e.,    clear        or

obvious), and (3) affects substantial rights,” United States v.

Strieper,     666         F.3d      288,     295   (4th     Cir.     2012)     (quoting       United

States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010)).                                    Even then,

we “may exercise [our] discretion to correct the error only if

it     ‘seriously          affects          the      fairness,        integrity        or     public

reputation of judicial proceedings.’”                           Id. at 295 (alteration in

original) (quoting Lynn, 592 F.3d at 577).



                                                   1.

       First,        we        review       Thomas      and    White’s        contention           that

admission       of    their          criminal        history        under    Federal        Rule     of

Evidence     404(b)            was        unduly   prejudicial.              Federal        Rule    of

Evidence 404(b) disallows admission of “[e]vidence of a crime,

wrong, or other act . . . to prove a person’s character in order

to   show    that         on    a    particular         occasion      the     person    acted        in

accordance with [that] character.”                             Although such evidence is

admissible      to        prove,          inter    alia,      that    a     defendant       had     the

requisite       “intent”             or     “knowledge”        to    commit     the     crime       in

question, Fed. R. Evid. 404(b)(2), it becomes inadmissible if

its “probative value is substantially outweighed by a danger

of . . . unfair prejudice,” Fed. R. Evid. 403.



                                                   15
                                         a.

      Pre-trial, the government filed a motion seeking to admit

evidence of a prior narcotics conviction for each appellant and

a   prior   firearm     conviction      for   Thomas.      The   district    court

granted the motion, reasoning that the evidence was admissible

because     it   related    to   the   knowledge    and   intent      necessary    to

commit the crimes for which Thomas and White were on trial.                        It

also reasoned that the evidence would not unfairly prejudice

Thomas and White under Federal Rule of Evidence 403 because it

did   not    “involve      conduct     that   was   any   more   sensational      or

disturbing than the crimes” with which Thomas and White were

charged     in   the    present      case.     Accordingly,      at    trial,     per

stipulation of the parties, the government stated,

      White, on or about October 27 of 2001, was convicted
      and sentenced . . . for the crimes of controlled
      dangerous   substance,  manufacture,  distribution  of
      narcotics and possession with intent to distribute
      narcotics. This evidence is relevant to the issue of
      knowledge and intent regarding the crime for which the
      defendant stands accused.

Further, regarding Thomas, it stated,

      Thomas, on or about August 12, 1992, was convicted and
      sentenced . . . for   the   crime  of  conspiracy   to
      distribute cocaine, and[,] . . . on or about October
      10, 1997, was convicted and sentenced . . . for the
      crime of attempted distribution of cocaine[, and] on
      or about June 22, 1994 . . . was convicted . . . on
      two counts of criminal possession of a weapon in the
      third degree, to wit, handguns.




                                         16
The   district      court      then    immediately        instructed      the      jury    as

follows:

      This evidence is being offered only on the issue of
      knowledge and intent. It is not to be accepted by you
      that someone is a bad person because of a prior
      conviction, it is not to be considered by you in terms
      of a propensity to commit an offense.     It is merely
      being offered on the issue of knowledge and intent,
      which is very important in this case, and it’s being
      offered in that context alone and no other context.

Following     this      clarification      from      the     court,    the    government

proceeded with the remainder of its case.

      After       the   government       closed        its    case,    but      prior      to

presentation of defense evidence and witnesses, Juror Number 12

submitted     a    list    of    questions      to     the    court.         One    of    the

questions     said,      “What    is    meant     by    the    stipulation         for    her

knowledge and not to show good or bad person?”                          After a bench

conference in which the judge shared the questions with counsel

for each party, he said to the jury, “Ladies and gentlemen,

actually      [J]uror          Number     12,        with      respect        to     those

questions, . . . I             have     made      those       questions       that        you

have . . . known          to    the    lawyers,      they     can   address        them    in

whatever fashion they want.”               Counsel for Thomas and White did

not object to the manner in which the court dealt with Juror

Number 12’s questions.

      During closing arguments, counsel for White and counsel for

the government both referenced the purpose for which the prior


                                           17
conviction evidence was admitted.          In its closing argument, the

government   stated,    “Now,   [counsel    for    White]     in   his   opening

[argument] told you that his client, I think the word he used

was a p[au]per.      Most respectfully, I don’t think there’s any

evidence for that, but I submit to you what there is evidence

[of] is that he’s a criminal.”             Similarly, in rebuttal, the

government stated,

     Mr. White’s status is not the issue in this case,
     ladies and gentlemen.    His status is not an issue.
     He’s a criminal.      Because the evidence that we
     presented over the last week establishes that he’s
     guilty.   And as such, the government has proven his
     criminal conduct. We’re not here to prove his status
     or attack him as a person.

Again, counsel for Thomas and White recorded no objection to

these statements.

     Here, Thomas and White cite Juror Number 12’s question and

the government’s statements during closing as evidence that they

were unfairly prejudiced by admission of the prior conviction

evidence.    We disagree.

                                    b.

     First, Thomas’s and White’s prior convictions were similar

to the charges they faced in this case.                 Such evidence was

therefore    relevant   to   whether     they     possessed    the   requisite

knowledge and intent to commit the narcotics crimes with which

they were charged.      Furthermore, immediately after admission of

the evidence, the court provided clear instructions to the jury

                                    18
as    to   the    legitimate          implications           of   the    prior     convictions.

Thomas      and        White       argue,        of     course,     that        this     limiting

instruction           was     insufficient        to     assuage        the    prejudice       that

resulted.         But       they     fail    to       tell   us   exactly       what    prejudice

ensued.     In their brief, they argue,

       When the jurors stated mid-trial that they did not
       understand the court’s [404(b)] instructions regarding
       use of prior acts to establish whether the defendant
       is a “good or bad person,” the court was presented
       with clear evidence of unfair prejudice . . . and
       [had] an obligation to take appropriate corrective
       measures at that time.

But    such      is     not    the     case.           First,     “the        jurors”    did    not

collectively state anything regarding a lack of understanding.

Rather, one juror, Juror Number 12, posed a question regarding

the appropriate use of the evidence.                              Moreover, Juror Number

12’s question did not “present[]” the court “with clear evidence

of unfair prejudice.”                   Instead, it simply revealed confusion

about the court’s limiting instruction.                           To the extent that such

confusion        resulted       in    unfair          prejudice,    that        result    is    not

“clear or obvious” to us, as the plain error standard requires.

       Second,         we     decline       to    conclude        that    the      government’s

comments      during          closing       arguments        caused      unfair        prejudice.

Taken in context, neither comment clearly referred to White’s

prior conviction; rather, the statements simply urged that on

the whole, the evidence presented during trial indicated that

White was “a criminal.”                 In our view, the comments referred to

                                                  19
White’s status based on his actions in the present case; they

did not beseech the jury to issue a guilty verdict based on

White’s prior criminal conduct.    To the extent that the comments

were interpreted as a reference to White’s prior conduct, such a

result is not “clear or obvious.”      Thus, we decline to reverse

Thomas’s and White’s convictions based on the district court’s

admission of evidence regarding their previous crimes or the

government’s statements during closing argument.



                                  2.

     Next, we review Thomas and White’s contentions regarding

Underhill’s testimony: (1) that portions of it were unsupported

by a reliable methodology and (2) that it mixed fact testimony

and expert testimony, such that the jury was confused.



                                  a.

     When the government called Detective Underhill to testify

as an expert, he indicated that he had been employed by the

Harford County Sheriff’s Office for ten years and that he was

presently assigned to work with the HCNTF.    He testified that he

had been with the HCNTF for “just over four years” and that his

primary duties were “investigations of mid to upper level drug

traffickers and drug trafficking organizations in and around the

Harford County area.”   Underhill further testified that he had

                                  20
received      forty     hours        of   specialized          training     related         to

narcotics investigations and had participated “in hundreds of

arrests involving drug investigations.”                       He also stated that he

had completed course work in other specialized areas related to

drug investigations and undercover operations.                         Underhill noted

that he had acted in an undercover capacity and that in that

role    had    purchased        cocaine,      crack      cocaine,      oxycodone,       and

marijuana.          Underhill    also     attested      that     he   had   acted      as   a

monitor of phone calls for wiretap investigations; he estimated

that he had monitored between 10,000 and 15,000 drug-related

phone conversations during his career.                    Underhill testified that

he monitored the phone calls that were intercepted on Thomas’s

phone   in    this    case.      Relevant         to   such    monitoring,      Underhill

indicated that it was “common” for drug conspirators “to attempt

to   conceal    or     code    their      phone    conversations”         and   that    his

“training,” “knowledge,” and “experience” had made him “familiar

with those terms and codes.”

       After the parties had an opportunity to examine Underhill

regarding his qualifications, the court asked, “Is there any

challenge to [Underhill’s] expertise with respect to the matter

of drug terminology and drug jargon from the point of view of

the defense counsel?”            Defense counsel indicated that it had no

objections.         The court then qualified Underhill as an expert “to

testify      with    respect    to    drug   jargon      and    drug   terms     and    the

                                             21
methodology        of   drug   distribution,”      cautioning         the     jury    that

“[a]s with all witness, [it was] up to [them] to accept or

reject [Underhill’s] testimony.”

       Underhill went on to testify as to the meaning of certain

phrases and terms used in the phone calls that were intercepted.

For example, Underhill testified, “Jolly Rancher is a reference

to    crack      cocaine . . . and     Lassie      is    a    reference       to   powder

cocaine.”        He further testified as to the phrase “outfit in the

dryer,” explaining that “in the process of converting cocaine

hydrochloride into cocaine base there is a drying process that

has to take place and this is referencing that drying process.”

And   as    to    the   phrase   “I    don’t     think       Shorty’s    dressed      up,”

Underhill interpreted it to mean, “[a]ll [the seller] has is

cocaine powder, he doesn’t have any cocaine that’s been cooked

up into crack cocaine.”

       At one point during Underhill’s testimony, referring to a

recorded      phone     call   that   had   been   played       for     the   jury,    the

government engaged in the following colloquy with Underhill:

       Q.     Detective Underhill, there’s a reference to Mr.
              Moore telling Mr. White that he was holding that
              for him and Mr. White responding that he has the
              change for that.

       A.     Yes.

       Q.     What is that a reference to, sir?

       A.     Mr. Moore had cocaine for Mr. White and Mr. White
              was indicating that he had money for him.

                                            22
Immediately following this testimony, without any objection by

defense    counsel,     the    court      initiated       a   bench     conference     and

cautioned the government to keep Underhill’s testimony within

“the ambit of an expert.”                In the court’s view, “the phrase I

was holding that for you in no way involve[d] expertise as to

drug language.”          The court did not strike this testimony or

instruct the jury to disregard it, however.

     In     addition     to    providing        expert        testimony    as    to    the

interpretation of coded words and phrases from intercepted phone

calls,    Underhill     also    testified       as    a   fact    witness       regarding

various aspects of the case—the circumstances of arrests, the

recovery of drugs, and the execution of a search warrant.                              When

Underhill provided this testimony, neither the parties nor the

court     distinguished       it    from    the      expert      testimony      that    he

provided.         According        to     Thomas      and      White,     “[Underhill]

seamlessly transitioned between lay and expert testimony.”

     At     the   end     of       the    trial,      during      its     formal       jury

instructions,      the     court         referenced       Underhill’s        testimony,

stating,

          In weighing [expert] opinion testimony, you may
     consider the witness’s qualifications, his or her
     opinions, the reasons for testifying as well as all of
     the other considerations that ordinarily apply when
     you are deciding whether or not to believe a witness’s
     testimony.    You may give the opinion testimony
     whatever weight, if any, you find it deserves in light
     of all of the evidence in this case. You should not,

                                           23
       however, accept opinion testimony merely because I
       allow the witness to testify concerning his or her
       opinion, nor should you substitute it for your own
       reason, judgment and common sense.


                                            b.

       Federal     Rule    of    Evidence    702    governs      the        admission    of

expert testimony, stipulating, inter alia, that “[a] witness who

is qualified as an expert . . . may testify in the form of an

opinion . . . if . . . the testimony is the product of reliable

principles    and    methods.”         Notably,        Thomas   and       White    do    not

challenge Underhill’s qualification as an expert.                           They instead

contest      the     methodology       that        supported          his     testimony,

maintaining that his opinion regarding the meaning of terms and

phrases was simply “rank speculation.”                    They aver that “almost

no topic of conversation was safe from Detective Underhill’s

leap to a connection with the drug world” and that “almost never

did    Detective    Underhill       explain      the    methodology          he   used   in

concluding that certain words [were] used as drug code rather

than because of their plain and ordinary meaning.”                           We conclude

otherwise.

       Before analyzing the intricacies of Underhill’s testimony,

we    reiterate    the    well-settled       principle     that       a     “trial   judge

[has] considerable leeway in deciding in a particular case how

to go about determining whether particular expert testimony is

reliable.”    Kumho       Tire   Co.   v.    Carmichael,        526    U.S.       137,   152

                                            24
(1999).       Moreover, this Court has previously advised that the

“test    of    reliability        [in    Federal   Rule   of    Evidence    702]   is

flexible.”      United States v. Wilson, 484 F.3d 267, 274 (4th Cir.

2007)    (quoting      Kumho      Tire    Co.,   526    U.S.   at    141-42).      For

example,       experiential       expert     testimony     is       noticeably   less

“testable” than testimony based on pure science; nevertheless,

per Rule 702, experience can still form the basis for reliable

expert testimony.           Id.    Indeed, the advisory committee notes to

Rule 702 explicitly contemplate the use of experiential expert

testimony by law enforcement agents in a trial that involves

drug transactions:

       [T]he principle used by the agent is that participants
       in such transactions regularly use code words to
       conceal the nature of their activities.      The method
       used by the agent is the application of extensive
       experience    to   analyze    the   meaning    of   the
       conversations.   So long as the principles and methods
       are reliable and applied reliably to the facts of the
       case, this type of testimony should be admitted.

Fed.    R.    Evid.   702    advisory     committee’s     note.       Further,   this

Court has previously held that “law enforcement officers with

extensive drug experience are qualified to give expert testimony

on the meaning of drug-related code words.”                    Wilson, 484 F.3d at

275.

       Thomas and White are concerned about the explanation of

methodology      (or    lack      thereof)       that   accompanied      Underhill’s

testimony.      But our precedent does not require a law enforcement


                                           25
officer providing experiential expert testimony to painstakingly

explain       his    deciphering     methodology.             See     United      States    v.

Baptiste, 596 F.3d 214, 222-23 & n.6 (4th Cir. 2010) (holding

that a district court did not commit plain error in admitting

the     testimony      of    a   drug   expert         when    that    expert       had    not

“specifically          mention[ed]        the     word        ‘methodology’          in    his

testimony” but had stated that he was experientially “familiar

with the street-level jargon associated with drug trafficking”

and that he decoded conversations by examining their context).

Thus, to the extent that the district court erred in finding

Underhill’s         methodology     sufficiently        reliable,          such    error   was

not plain.

        Thomas      and     White   are     also        concerned          that    Underhill

interpreted phrases that were commonplace and not in need of

elucidation by an expert.               Again, we find that if the district

court erred, such error was not plain.                        Even assuming, for the

sake    of    argument      only,   that    the    court       should       have    stricken

Underhill’s testimony regarding the phrase “I was holding that

for you,”        we cannot ascertain that the court’s failure to do so

violated Thomas’s and White’s substantial rights, especially in

light    of    the    two    instructions        the    court       gave    regarding      the

weight of the testimony.             Accordingly, we decline to reverse the

verdict on this ground.



                                            26
                                                 c.

     Thomas       and        White        also    contend          that      when     Underhill

“seamlessly” testified both as an expert and fact witness, the

district court failed to adopt adequate safeguards to prevent

jury confusion.          Dual-role testimony is not per se prejudicial

to a defendant.             Baptise, 596 F.3d at 224.                      However, when a

witness plays such a dual role, the district court must take

precautions to ensure that the jury does not become confused and

accord    undue    weight       to     fact      witness      testimony        given      by    the

expert.     Id. (quoting Wilson, 484 F.3d at 278 n.5).                              Appropriate

precautions       include       (1)    having         the    expert       witness     make      two

separate     trips      to     the     stand      and       (2)    issuing     a     cautionary

instruction to the jury regarding the witness’s dual role.                                  Id.

     Here,    lay       and     expert      testimony         were    interwoven          and     no

cautionary     instruction            was    issued;        thus,     the     risk     of      jury

confusion    was       high.      This      Court       recently      addressed       a   nearly

identical    circumstance            in     Baptiste.             Although    it     ultimately

declined to reverse the jury verdict in that case because it was

constrained       by    a      plain      error       standard       and     “the    facts        in

the . . . case placed it in a gray area of the law,” the court

issued a caution regarding the handling of dual-role testimony:

     [W]e note that the district courts should take steps
     to ensure that there is a clear demarcation in the
     jury’s mind between a witness’s lay and expert roles.
     This may be accomplished, for example, by cautionary
     warnings or instructions, by requiring the witness to

                                                 27
       take separate trips to the stand in each capacity, or
       by ensuring that counsel makes clear when he is
       eliciting lay versus expert testimony.

Baptiste, 596 F.3d at 225 n.9.

       Given our discussion of appropriate safeguards in Baptiste,

and the district court’s failure in this case to implement any

of those safeguards, we can readily say that the court erred in

not employing methods to help the jurors “understand that they

[could] not give [Underhill’s] lay testimony additional weight

simply because of his dual-role as an expert.”               Id.   We cannot

say that the district court’s error merits reversal, however.

Under the plain error standard, reversal requires an obvious

error that affects substantial rights.             Thomas and White have

failed to demonstrate how the district court’s error rises to

such a level.       In their brief, they claim that “[t]he errors

were numerous and the confusion widespread.”              However, they fail

to cite any specific examples of this “widespread” confusion.

Accordingly, we are once again constrained to uphold the jury’s

verdict.



                                      II.

       Thomas and White next contend that the district court erred

in declining to give a multiple conspiracies jury instruction.

A   multiple   conspiracies    jury   instruction    is    appropriate   when

“the   proof   at   trial   demonstrates    that   [the]    appellants   were

                                      28
involved only in separate conspiracies unrelated to the overall

conspiracy       charged    in    the    indictment.”             United      States   v.

Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (quoting United

States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994)) (internal

quotation marks omitted).

     The government’s evidence supporting Thomas’s and White’s

conspiracy      charges    consisted       of    (1)    wiretap    evidence      showing

contact between Michael Moore 5 and Thomas and between Moore and

White    and    (2)    evidence   showing       that    Moore     and   Thomas    shared

customers—namely, Stokes, Leandre Preston, and Joseph Hensley,

all individuals who were apprehended with Thomas and White.

     At the jury charge conference, Thomas and White requested a

multiple       conspiracies      jury    instruction,      maintaining         that    the

government’s          evidence    proved        there    were     “essentially         two

distribution       networks”      with    individual       buyers       and    that    the

government made “no connection between the distribution networks

and any of [the] individual buyers.”                    The district court denied

Thomas and White’s request, and they contend that it erred in

doing so.

     “We review [a] district court’s decision to give or refuse

to give a jury instruction for abuse of discretion.”                              United


     5
       Michael Moore was charged with White and Thomas but is not
a party to this appeal.



                                           29
States v. Sarwari, 669 F.3d 401, 410–11 (4th Cir. 2012) (quoting

United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009))

(internal quotation marks omitted).                   We will find refusal to

give an instruction erroneous only if the requested instruction

“(1)    was   correct,    (2)    was   not      substantially        covered    by    the

court’s charge to the jury, and (3) dealt with some point in the

trial    so   important     that    the    failure       to   give    the   requested

instruction     seriously        impaired       the     defendant’s      ability       to

conduct his defense.”           United States v. Green, 599 F.3d 360, 378

(4th Cir. 2010) (quoting Passaro, 577 F.3d at 221).                            Here, we

conclude the district court properly denied Thomas and White’s

request for a multiple conspiracies jury instruction.

       Thomas   and      White     maintain      that     the   instruction          they

requested     was   correct      because    “[t]he      government     presented       no

evidence that [they] had any relationship with each other, or

any acquaintances of alleged co-conspirators in common.”                             They

admit    that    the     government       presented       evidence      that     Stokes

purchased her drugs from both Thomas and Moore and that White

purchased his drugs from Moore, but they aver that such evidence

is insufficient to show that White and Thomas were involved in

the same conspiracy.        We are unconvinced.

       Thomas and White fail to accord sufficient weight to our

precedent regarding the proof necessary for a conspiracy.                               A

conspiracy      need       not      “have        a      discrete,       identifiable

                                           30
organizational     structure.”          United         States      v.     Banks,    10   F.3d

1044,   1054    (4th    Cir.   1993).            Rather,      it    can     be    simply     “a

loosely-knit association of members linked only by their mutual

interest in sustaining the overall enterprise of catering to the

ultimate demands of a particular drug consumption market.”                                  Id.

Moreover, “[o]nce it has been shown that a conspiracy exists,

the evidence need only establish a slight connection between the

defendant and the conspiracy to support conviction.”                                  United

States v. Burgos, 94 F.3d 849, 861 (4th Cir. 1996) (alteration

in original) (quoting United States v. Brooks, 957 F.2d 1138,

1147 (4th Cir. 1992)) (internal quotation marks omitted).                                    In

fact,   proof    of    a    conspiracy      does       not    even        require    that     a

defendant “know all of his coconspirators.”                          Id.      Such is the

case    here.         The    government          may    not        have     outlined        the

organizational structure of Thomas and White’s conspiracy, but

it   presented   evidence      sufficient         to    show       that    they     were,    at

minimum, part of a “loosely-knit association of members” that

existed   for    the    purpose   of     drug      trafficking.              We    therefore

conclude that the district court did not act “arbitrarily or

irrationally”     in    declining      to    give      the    multiple       conspiracies

jury instruction that Thomas and White requested.




                                            31
                                            III.

      Finally, we address White’s contention that the government

presented      insufficient        evidence        to    support     his   conspiracy

conviction.          When   we    review      a    trial    to    determine   whether

sufficient evidence supported conviction on a certain charge, we

view the evidence through a lens that favors the government, and

we ask, “Could any reasonable juror have found the defendant

guilty of this charge beyond a reasonable doubt?”                          See United

States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).

      We have reviewed the evidence that the government presented

against White, and we are satisfied that it was sufficient for a

reasonable juror to find White guilty of conspiracy under 21

U.S.C. § 846.        White argues that the government “may have proved

that a drug trafficking conspiracy existed, [but] there was no

evidence    to   support     a    finding         that . . . White       knowingly   or

voluntarily participated in that conspiracy.”                        Further, White

contends      that    the   government’s            circumstantial       evidence    of

White’s participation in the sale of drugs was insufficient to

prove his involvement in the conspiracy.                   We are unpersuaded.

      At trial, the government presented evidence showing that on

several occasions, White called Moore to purchase powder cocaine

and   crack    cocaine.          The   government        also    presented    evidence

indicating     that    on   April      8,    2010,      after    White   called   Moore

requesting cocaine, he met with Moore in a black Nissan and then

                                             32
exited the Nissan and entered a white Dodge.                        After a “brief

time, approximately a minute or so,” White exited the Dodge and

re-entered the Nissan.           “[J]ust a couple of minutes after the

meeting,”     law     enforcement        officers    stopped       the     Dodge    and

discovered    crack     cocaine     in     the    driver’s       possession.        The

government     also     presented    evidence        of       several    other     brief

meetings between White and Moore.

     We     recognize    that     such      evidence      may     seem    negligible.

Nonetheless, it is sufficient to support a conclusion that White

participated in a conspiracy with Thomas and Moore.                            And when

enough    evidence      exists      to     support        a    reasonable        juror’s

conclusion    of    guilt,   we     will    not     second-guess         the   verdict.

Accordingly, we again decline to reverse White’s conviction.



                                          IV.

     We have reviewed the evidence provided to us in the record,

and we have considered each of Thomas’s and White’s allegations.

Because we ascertain no reversible error, we affirm the jury’s

verdict on all counts.

                                                                               AFFIRMED




                                           33
