                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4545


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHARLES LEONARD GALLOWAY, a/k/a Len,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:10-cr-00775-RDB-1)


Argued:   December 11, 2013                 Decided:   April 15, 2014


Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.


Affirmed by published opinion.        Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Judge Duncan joined.


ARGUED:   Megan Elizabeth Coleman, MARCUSBONSIB, LLC, Greenbelt,
Maryland, for Appellant. Sujit Raman, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.    ON BRIEF:
Rod J. Rosenstein, United States Attorney, Ayn B. Ducao,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
NIEMEYER, Circuit Judge:

     Charles Galloway was convicted in Baltimore, Maryland, of

conspiracy to distribute and possess with intent to distribute

one kilogram or more of heroin, in violation of 21 U.S.C. §§ 846

and 841(a)(1).         The district court sentenced Galloway to 292

months’ imprisonment, and Galloway filed this appeal, raising

several issues with respect to his conviction.                        We affirm.


                                              I

        In connection with an investigation based in San Diego,

California,      of   an    international           drug    trafficking       conspiracy,

Special Agent James Karas of the DEA uncovered the involvement

of   Charles      Galloway         in    Baltimore,          Maryland.          Based    on

information      provided     by    Special        Agent     Karas,    Detective       Keith

Sokolowski       of   the    Baltimore            City     Police     Department      began

investigating Galloway and eventually obtained authorization to

place    wiretaps     on    four    of    his      cell     phones.         Through   these

wiretaps, Detective Sokolowski learned that Galloway used one

phone    predominantly       for    drug-related           conversations,       while    he

reserved    a    second     phone       for   his        conversations       with     Santos

Chavez, a coconspirator in the Los Angeles, California area.

Based on the intercepted conversations and on the testimony of

actual    drug    traffickers       in    the      Baltimore        area,    Galloway   was

convicted of conspiracy to traffic in heroin.


                                              2
     At   trial,    Special     Agent       Karas    and     Detective       Sokolowski

testified    not   only   as     fact       witnesses,       but    also     as    expert

witnesses in drug distribution methods and the interpretation of

the coded language used in narcotics-related telephone calls.

The officers explained how drug traffickers use unrelated words

to refer to drugs, prices, and related issues, explaining that

while there is no established vocabulary, the meaning of the ad

hoc words used in lieu of other possibly incriminating words may

be derived from context.             The officers testified that, in their

opinions,    Galloway     and    his        coconspirators         used     such    coded

language in their intercepted conversations.

     Following      Galloway’s         conviction,          the     district       court

sentenced him to 292 months’ imprisonment.

     This appeal followed.


                                            II

     Galloway      contends     first       that     he     was    denied     effective

assistance   of    counsel      by    the       privately    retained       lawyer   who

represented him for approximately five months -- from July 2011

until he was permitted to discharge her in January 2012, which

was somewhat more than two months before trial commenced.                             He

states that this lawyer failed to file any substantive pretrial

motions on his behalf, failed to demand discovery in a timely

fashion, and failed to communicate with him about his case.                            He


                                            3
further asserts that her deficient performance resulted in his

being “at a disadvantage at the motions hearing”; in his having

“to scramble” with stand-by counsel for discovery only “weeks

before trial”; and in his “electing to go forward with a trial,

unprepared.”

     It    is    well    established      that    “a   defendant   may    raise     [a]

claim of ineffective assistance of counsel in the first instance

on direct appeal if and only if it conclusively appears from the

record that . . . counsel did not provide effective assistance.

Otherwise, [he] must raise [his] claim in the district court by

a collateral challenge pursuant to 28 U.S.C. § 2255 . . . .”

United    States    v.     Smith,    62    F.3d    641,    651   (4th    Cir.    1995)

(emphasis       added)     (internal      quotation     marks    omitted).        This

standard is demanding, and Galloway has not met it here.

     While the record surely supports Galloway’s claim that he

was dissatisfied with his first lawyer’s services, he fails to

demonstrate from the record that her performance fell below an

objective       standard    of    reasonableness,         especially     given    that

“[i]n     evaluating      counsel’s       performance,     we    must    ‘indulge    a

strong presumption that counsel’s conduct falls within the wide

range     of    reasonable       professional      assistance.’”         Sexton      v.

French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Strickland v.

Washington, 466 U.S. 668, 689 (1984)).                      At most, the record

establishes that Galloway lodged serious allegations against his

                                            4
lawyer, which his lawyer disputed.                    As such, the record does not

show conclusively that his allegations had any merit.

       Moreover, Galloway has not shown that he was prejudiced by

his first lawyer’s performance.                      To meet this element of an

ineffective assistance claim, Galloway would have to show “that

there    is     a   reasonable      probability            that,    but   for     counsel’s

unprofessional errors, the result of the proceeding would have

been    different”      and   that       “the      result     of    the   proceeding     was

fundamentally unfair or unreliable.”                        Sexton, 163 F.3d at 882

(internal      quotation      marks      and       citations       omitted).       But   the

record shows that soon after Galloway brought his complaints

about    his    first    lawyer’s        services       to    the    attention      of   the

district court, the court appointed an Assistant Federal Public

Defender       to   represent      him    and      pushed     back    his    trial    date.

Galloway’s      new   counsel      was    then       given    a    full   opportunity     to

present pretrial motions on his behalf and to prepare for trial.

In light of these precautionary measures, Galloway’s claim that

he was ultimately unprepared for trial surely stems more from

subsequent      decisions     he    made       (1)    to     discharge      the   Assistant

Federal Public Defender representing him; (2) to withdraw that

lawyer’s motion to continue the trial date; and (3) to represent

himself at trial with stand-by counsel.




                                               5
       In short, Galloway’s showing on this issue falls far short

of conclusively establishing the ineffectiveness of his first

counsel.

                                              III

       Galloway next contends that the district court abused its

discretion by depriving him of meaningful access to discovery

while he prepared his pro se defense.                       Specifically, he objects

to   the     court’s    ruling      that      he    could    not    take    any      discovery

materials      to    the    detention         center      where    he    was    being       held,

including any handwritten notes he made regarding the discovery

he   reviewed.         In   addition,         he    contends      that   the        alternative

setup      provided       for    him     to     review      discovery          in    the    U.S.

Courthouse’s lockup area was inadequate because the room did not

have    an    electrical         outlet,      limiting       his    ability         to     review

electronic evidence.

       Based on the circumstances, we conclude that the district

court acted within its discretion in so controlling discovery.

As the court explained, “we’ve had enormous security issues with

respect       to    federal        detention         facilities,”          including          two

different       trials      over        which       the    district       judge          presided

involving      the     murder       of     witnesses.              Although         the    court

recognized that it was inconvenient for both Galloway and the

U.S.    Marshals       to   transport         Galloway       to    and     from      the     U.S.

Courthouse,         the         court      reasonably          concluded            that      the

                                                6
inconvenience was justified by the circumstances.                             And while the

lockup area did lack an electrical outlet, the Assistant Federal

Public Defender mitigated the problem by providing Galloway with

two extra laptop batteries.                 Finally, Galloway never sought a

continuance based on the logistics of the arrangement.                              Rather,

he repeatedly indicated that he did not want to postpone the

trial any further.           In view of the legitimate security concerns

and    Galloway’s         failure     to     show       any       prejudice      from     the

arrangement, we find that the limitations the court imposed were

reasonable.         See United States v. Sarno, 73 F.3d 1470, 1492 (9th

Cir. 1995) (concluding that while a pro se defendant’s “access

to    discovery      materials      was    hardly      optimal,”        the    “limitations

imposed   on     him      were   reasonable”);         see    also      United   States    v.

Bisong, 645 F.3d 384, 396 (D.C. Cir. 2011) (noting that, “[e]ven

assuming that pro se defendants have a Sixth Amendment right to

discovery      in    preparing      their    defense,”        a    defendant      advancing

such a claim “must demonstrate prejudice in order to prevail”).


                                            IV

       Galloway also contends that the district court erred in

denying his motion to suppress evidence obtained through the

wiretaps, contending that the affidavits submitted in support of

the    wiretap      applications      failed      to    set    forth      specific      facts

showing    why      the    wiretaps   were       necessary,        as    required    by   18


                                             7
U.S.C. § 2518.      To obtain authorization for a wiretap, federal

law requires the government to submit an application containing

“a   full   and   complete      statement       as    to       whether     or    not    other

investigative procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried or to be

too dangerous.”       18 U.S.C. § 2518(1)(c).                    Galloway acknowledges

that the affiants addressed why they believed that they would

not be able to identify all the coconspirators or to achieve the

investigation’s         other     objectives              by       using        traditional

investigatory      procedures         alone,        but     he     asserts       that     the

explanations      amounted       to     bare        conclusory        statements          and

boilerplate recitations that would more or less apply to any

drug-trafficking investigation.

       Although   the     government       filed           three     separate       wiretap

applications with the Circuit Court for Baltimore City in order

to obtain authorization to intercept calls over four cell phones

used by Galloway, only the affidavits submitted in support of

the first two wiretap applications -- one submitted on May 26,

2010, and one submitted on June 8, 2010 -- are at issue.                                Those

affidavits detailed at length the steps that police officers had

taken since January 2010 in investigating the Baltimore portion

of an international drug conspiracy, and they contained fairly

extensive discussions of why the affiants believed the wiretaps

were     necessary,       addressing           at         least      ten        alternative

                                          8
investigatory procedures.              They explained that the police had

already   used     several       of    those       techniques     --     for    example,

conducting    physical       surveillance,           analyzing         telephone       toll

records, and affixing GPS devices -- but that those methods had

failed to reveal the full scope of the organization, showing

instead   “that    members       of    this     organization       [were]      extremely

cautious in their movements and activities.”                           The affidavits

further   explained        why        the   officers        believed      that        other

investigatory      techniques           were       unlikely       to     achieve        the

investigation’s     objectives,         taking      the   position       that    certain

methods (e.g., attempting to develop a confidential informant,

subpoenaing      witnesses       to    appear      before     a   grand     jury,      and

executing search warrants) were likely to reveal the existence

of the ongoing investigation to Galloway and his associates,

while other methods (e.g., trash searches and pole cameras) were

not practical under the circumstances.

     Based    on    this     record,          we    cannot    conclude         that     the

authorizing court abused its discretion when it determined that

the government had submitted sufficient facts to show the need

for the wiretaps.        See United States v. Wilson, 484 F.3d 267,

280 (4th Cir. 2007).          The government’s burden “is not great.”

United States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994).

While it cannot meet its burden with “bare conclusory statements

that normal techniques would be unproductive or mere boilerplate

                                            9
recitation of the difficulties of gathering usable evidence,”

“it need only present specific factual information sufficient to

establish that it has encountered difficulties in penetrating

[the] criminal enterprise or in gathering evidence” such that

“wiretapping      becomes       reasonable,”      despite      “the        statutory

preference     for    less   intrusive       techniques.”      Id.     at   1297-98

(alteration in original) (internal quotation marks and citations

omitted).      We believe that this standard was satisfied here.

       Accordingly, we conclude that the district court did not

err    in   denying     Galloway’s   motion       to    suppress     the    wiretap

evidence.


                                         V

       Finally, Galloway contends that the district court abused

its discretion in admitting expert testimony from Special Agent

Karas and Detective Sokolowski under Federal Rule of Evidence

702, as well as in managing the presentation of their testimony

so as to avoid any confusion that might be caused by their

testifying both as fact witnesses and as expert witnesses.                         More

particularly,        Galloway   argues     (1)   that    the   court       erred    in

receiving Special Agent Karas as an expert witness because he

failed adequately to explain his methodology for identifying and

translating coded language; (2) that the court failed to ensure

that    both     witnesses      reliably      applied     their      methods        and


                                         10
principles to the facts in the case; and (3) that the court

failed   to    enforce       safeguards       to    prevent        the    jury    from      being

confused regarding the officers’ dual roles.

     Galloway did not raise these challenges during trial and,

in particular, did not object to the portions of testimony to

which he now objects.                Accordingly, he must satisfy the plain

error standard of review, which requires that he show that the

district court erred in receiving and managing the officers’

testimony;      that    the    errors     were       plain;       and     that    the       errors

affected the outcome of the trial.                         See Fed. R. Crim. Proc.

52(b); United      States       v.    Olano,       507     U.S.    725,       732-34     (1993);

United States v. Baptiste, 596 F.3d 214, 220 (4th Cir. 2010).

Moreover, even then, we will note errors only if a miscarriage

of justice would result or the errors would seriously affect the

fairness,      integrity,       or     public       reputation           of    the     judicial

proceedings.      Baptiste, 596 F.3d at 220.

     The      district       court    qualified          Special    Agent        Karas      as    an

expert, based on his 15 years of experience during which he had

participated      in     a    number     of        DEA    investigations             that    used

wiretaps, personally reviewing “thousands” of narcotics-related

telephone      calls.          In     addition,          Special         Agent     Karas         had

previously been qualified as an expert witness in other trials

with respect to the interpretation of coded language used in

narcotics-related communications.                   The court qualified Detective

                                              11
Sokolowski    as    an       expert     on    similar    grounds,      relying       on    his

extensive     experience            investigating        narcotics       organizations,

which    included      listening        to    “thousands”       of   intercepted          drug-

related conversations and testifying about the coded language

used in them.          Detective Sokolowski explained how, through his

experience,    he      had       become    familiar      with    the   fact     that      drug

dealers use coded language when speaking about narcotics and

that, while there were some common code words, most were subject

to interpretation based on the context of the conversation.                                 As

he explained, “Basically, in the context of the call you can

just listen to the way the people go back and forth, and given

an investigation where you should have a very good understanding

of   what’s   going         on     already,    you’ll       understand       what    they’re

talking about.”         Upon qualifying the first of these two officers

as an expert witness, the court instructed the prosecutor in the

jury’s     presence         to    “be     careful     that    we     separate       his     lay

testimony     as   a    lay      witness      from    the    proffer     of    any    expert

testimony.”

      Galloway          complains            about      Special        Agent         Karas’s

interpretation         of    the    following        statement,      which    Chavez       made

during a conversation with Galloway:

        Here’s um, here’s what we’re gonna do, um, I, I don’t
        want to just fly out there, like I had told you, for
        just, you know, couple of bucks, so, what I have to
        do, is, have 20 dollars here with me for these guys
        when they gonna give me the 6 credit cards. . . .

                                              12
      Okay, they gonna give me the 3 of my boys and 3 of the
      other 3.

Karas explained that, in his opinion, “20 dollars” was code for

$20,000, noting that he had previously come across narcotics

traffickers using this type of shorthand to disguise the actual

dollar amounts they were discussing.                      He also gave his opinion

that Chavez was using the                phrase “6 credit cards,” as well as

the   phrase     “3   of    my   boys    and    3    of   the    other   3,”    as    coded

language to refer to drugs.

      In    a     similar        vein,     Galloway          objects     to     Detective

Sokolowski’s explanations of conversations based on the context

given.     Sokolowski testified, for example, that “demonstration”

was a code word used three times in various calls to refer to

drugs and once to refer to a gun.                    His interpretation was later

corroborated       by      an    individual         who   testified      that    he    had

routinely bought heroin from Galloway and that he and Galloway

had used words like “demonstrations” in their conversations as

code for drugs, guns, or whatever else they wanted “to coverup.”

Sokolowski also gave an opinion that when one of the couriers

told Galloway, “The people with the contract, they probably have

their own heads,” the courier was referring to the fact that the

network’s       heroin     suppliers      were       using      their    own    couriers.

Sokolowski testified further that, in his opinion, “baby” and

“CDs” were code words used to refer to drugs; that “food caps”


                                           13
and    “food    jars”      were    coded       phrases       used    to        refer    to   drug

packaging materials; and that the phrase “getting ready to get

the    birds   out”       was   coded     language         meaning    that        the   speaker

intended      “to   wake    early       and    get    out    on     the    street       to    sell

product.”

       After reviewing the entire record, we conclude that the

district court did not plainly err in qualifying these officers

as    expert   witnesses,         nor     in   receiving       their       testimony         about

interpreting        the    coded    portions         of    intercepted         conversations.

In receiving this evidence, the court functioned well within the

scope    of    discretion         given       by    Rule    702.          As    the     advisory

committee’s note to that rule explains:

       [W]hen a law enforcement agent testifies regarding the
       use of code words in a drug transaction, the 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        (2000    amends.)

(emphasis added); see also Baptiste, 596 F.3d at 223; Wilson,

484 F.3d at 274-75.

       Both of these expert witnesses operated under the principle

that drug-related conversations involve the use of code words to

conceal the true nature of illegal activities.                                  And both used


                                               14
the method of applying their extensive experience to analyze the

meaning of the conversations through context.                          Special Agent

Karas explained that because narcotics traffickers do not all

use the same code words for drugs, he has to look for meaning in

the “context of a conversation or an investigation, not stand-

alone    in     the   word    itself.”        Similarly,      Detective      Sokolowski

explained that he had become familiar with the ways in which

narcotics dealers use coded language “through everyday contact

[with]    people      in     the    street,    through      everyday      contact    with

informants, arrestees, police, just by speaking to people and

learning every day the new and upcoming terminology.”                            While he

gave the jury examples of words that were commonly used by drug

traffickers, he also explained how he relied on “the context of

the     call”    to    translate       the    coded      words    being    used     in   a

particular telephone call.                 Based on this record, we conclude

that the district court did not plainly err in conducting its

gatekeeping       function         under    Rule   702    with    respect    to     these

officers’ expert testimony.

      With respect to Galloway’s challenge to the use of Special

Agent Karas and Detective Sokolowski as both fact witnesses and

expert     witnesses,         the     district      court     adequately         followed

established       protocols.          See     Baptiste,     596    F.3d     at    223-26;

Wilson, 484 F.3d at 278 n.5.                  After accepting both officers as

expert witnesses, the court emphasized to the jury that while

                                              15
these witnesses would be permitted to give “opinions as to coded

language and methods of distribution,” it was still for the jury

to “accept, reject, or whatever in terms of whether or not you

accept that testimony or not.”        The court further admonished the

prosecutor    in    the   jury’s   presence   to   “be   careful   that    we

separate . . . lay testimony as a lay witness from the proffer

of   any   expert   testimony.”      And   based   on    our   review,    the

government heeded this instruction.

     At bottom, we conclude that the district court committed no

plain error that affected Galloway’s substantial rights.

      The judgment of the district court is

                                                                   AFFIRMED.




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