 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 2, 2011              Decided December 9, 2011

                          No. 10-3043

                 UNITED STATES OF AMERICA,
                         APPELLEE

                                v.

                   LEONEL RENE GUERRERO,
                        APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                    (No. 1:08-cr-00347-1)


     Robert A. Sheffield, appointed by the court, argued the cause
for appellant. With him on the briefs was Douglas J. Behr. A.
J. Kramer, Federal Public Defender, entered an appearance.

    Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III and
Elizabeth Trosman, Assistant U.S. Attorneys.

   Before: ROGERS and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

    Opinion for the Court by Circuit Judge ROGERS.
                                2

     ROGERS, Circuit Judge: Claiming trial evidentiary errors,
appellant Leonel Rene Guerrero seeks reversal of his conviction
by a jury for unlawful possession with intent to distribute cocaine
and aiding and abetting. His principal contention is that the
district court plainly erred in allowing a law enforcement officer
to offer lay opinion testimony pursuant to Federal Rule of
Evidence 701 about the drug-trafficking significance of items
seized from his bedroom and that to the extent the officer’s
opinion testimony was admissible he first had to be qualified as
an expert pursuant to Federal Rule of Evidence 702. Because
appellant elicited testimony concerning the officer’s law
enforcement experience with drug trafficking in an attempt to
demonstrate he was conditioned to see the benign items seized
from appellant’s bedroom as drug paraphernalia, and elicited his
opinion regarding one of those items, appellant fails to show
prejudice even assuming the testimony was improperly admitted.
Circuit precedent confirms his other contentions are without
merit. The district court neither abused its discretion in
excluding expert evidence on the ultimate question in the case,
nor erred in allowing the prosecutor to ask guilt-assuming
hypothetical questions of a character witness testifying about her
personal opinion. Accordingly, we affirm the judgment of
conviction.

                                I.

     On October 17, 2008, appellant accepted delivery at his
house of a package that was shipped from El Salvador and
addressed to Carlos Lopez. Inside the package was a gold statue
containing 302.6 grams of cocaine. Law enforcement officials
had intercepted the package upon its arrival in the United States
and installed a trip wire to signal when the package was opened.
When the wire was tripped thirty minutes after appellant
accepted the package, law enforcement officers, including
Special Agents from Immigration and Customs Enforcement,
                                 3

were admitted into the house, upon identifying themselves, by
two women. In the basement, the agents found appellant poised
to exit into the backyard and Jose Luis Sacreas as well as a third
man and the opened package. The agents searched the house.
Special Agent Drewniak seized a number of items from
appellant’s bedroom on the second floor: two coffee grinders, a
digital scale, a small white ceramic bowl, a small white spoon,
a jar of creatine, cotton gloves, small plastic baggies, and $707
in cash; the coffee grinders and the scale contained white residue
later identified as a mixture of cocaine and lidocaine. Appellant
and Sacreas were indicted for unlawful possession with intent to
distribute cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and
aiding and abetting, 18 U.S.C. § 2.

      Agent Drewniak, along with three other Special Agents who
participated in the controlled delivery of the package, testified at
trial. Drewniak testified on direct examination that the items
seized from appellant’s bedroom were “consistent with narcotics
distribution activity.” Tr. 5/19/09 at 116. He explained that
“typically” coffee grinders are used to mix cutting agents such as
creatine with pure cocaine, small bowls are used to hold small
amounts of cocaine, small spoons are used to scoop and move
small quantities of cocaine, scales are used to measure small
quantities of cocaine, gloves are used to keep cocaine from being
absorbed into the skin, and small baggies are used to package
cocaine for sale. Tr. 5/19/09 at 116, 119, 120–23, 125; Tr.
5/20/09 at 6. On cross examination, appellant, through counsel,
questioned Drewniak about the extent of his law enforcement
experience and training, prompting him to testify that he had
been trained to conduct surveillance, search a crime scene,
interview witnesses, conduct a through investigation and had
“conducted numerous controlled deliveries” of unlawful drugs.
Tr. 5/20/09 at 15. Counsel also inquired, “What is the
significance of this little plate, the drug significance?” and
Drewniak testified that “in the drug distribution enterprises
                                4

typically small bowls and small plates are utilized in a fashion to
mix pure cocaine that is imported into the country with diluting
agents such as benzocaine or creatine.” Tr. 5/20/09 at 25.

     Other government witnesses included forensic chemists
from the Drug Enforcement Administration. These chemists
testified that they had found cocaine on the grinders and scale
and that creatine is a cutting agent often mixed with pure cocaine
to add bulk and dilute the cocaine. Two of appellant’s superiors
at the Washington Hilton Hotel testified that appellant’s job as
a steward involved pushing large carts of soiled dishware that he
washed in a dishwasher, that he had no problem doing any facet
of his job, and that he was among the hotel’s best stewards and
would supervise anywhere between two to fifteen employees on
weekends.

     In defense, appellant presented the testimony of his wife and
an expert witness as well as a coworker and a neighbor. His wife
testified they had bought the house in 2001, and she had lived
there until June 2008 when she and their children moved to
Maryland. Sometime after June 2008, appellant began renting
out rooms in the house and there were nine tenants at the time
appellant was arrested. She recognized the items seized from
appellant’s bedroom, explaining that she had used the creatine to
build muscle so she might more easily lift beds in her work as a
housekeeper, the scale to weigh gold jewelry that she purchased
in Peru and sold during the holidays, the coffee grinders to grind
coffee, and the spoon to feed her small children. Appellant wore
the cotton gloves at work to hold hot plates and used the baggies
to carry his medicine to work. On cross-examination she
acknowledged that the seized baggies were smaller than those
she bought for carrying appellant’s medicine and that she did not
know how the coffee grinders and scale came to have cocaine
residue on them.
                                  5

     Dr. Stephen J. Feinberg, an optometrist specializing in low
vision, testified that he had examined appellant and reviewed his
medical records and concluded that there is “no normal . . .
architecture, in the retina of [appellant’s] eyes,” his “peripheral
vision is not very good; his central vision . . . is nonexistent,” and
his vision is twelve times worse than that needed to qualify as
legally blind even with corrective lenses. Tr. 5/21/09 at 50, 54.
Although appellant could identify the denomination of paper
currency by holding it within five inches of his eyes, he would
have difficulty distinguishing white powder on a white surface.

     Appellant’s co-worker testified that he realized from the first
day that he met appellant over a decade ago that “he could not
see properly,” Tr. 5/20/09 at 163, and that he knew appellant to
be a law-abiding person. His next-door neighbor testified that
she was aware appellant had trouble with his eyesight, she would
drive him to and from work three or four times a week, and knew
him to be a law-abiding person. When asked on cross
examination whether her opinion would change if told that
appellant had been charged with unlawful possession with intent
to distribute cocaine and had the items necessary to prepare and
package cocaine for sale in his bedroom, she testified her opinion
would not change because she did not believe that appellant was
guilty.

    The jury found appellant guilty and the district court
sentenced him to time served and 36 months supervised release.
Appellant appeals.

                                II.

    Federal Rule of Evidence 701, “Opinion Testimony by Lay
Witnesses,” provides:

         If the witness is not testifying as an expert the witness’
                                   6

            testimony in the form of opinions or inferences is
            limited to those opinions or inference which are (a)
            rationally based on the perception of the witness, (b)
            helpful to a clear understanding of the witness’
            testimony or the determination of a fact in issue, and (c)
            not based on scientific, technical, or other specialized
            knowledge within the scope of [Federal] Rule [of
            Evidence] 702.1

These rules are designed to draw a distinction between lay and
expert testimony and to ensure that any testimony “based on
scientific, technical, or other specialized knowledge” is
“scrutinized under the rules regulating expert opinion.” FED. R.
EVID. 701, 2000 amendment advisory committee note. Proper
lay opinion testimony is not based on specialized knowledge and
is “the product of reasoning processes familiar to the average
person in everyday life.” United States v. Wilson, 605 F.3d 985,
1025 (D.C. Cir. 2010) (quoting United States v. Garcia, 413 F.3d
201, 215 (2d Cir. 2005)).

    Appellant contends that Special Agent Drewniak’s lay
opinion testimony about the drug-trafficking significance of the
items seized from his bedroom was improper lay opinion

        1
            Federal Rule of Evidence 702, “Testimony by Experts,”
provides:

        If scientific, technical, or other specialized knowledge will
        assist the trier of fact to understand the evidence or to
        determine a fact in issue, a witness qualified as an expert by
        knowledge, skill, experience, training, or education, may
        testify thereto in the form of an opinion or otherwise, if (1)
        the testimony is based upon sufficient facts or data, (2) the
        testimony is the product of reliable principles and methods,
        and (3) the witness has applied the principles and methods
        reliably to the facts of the case.
                                  7

testimony under FED. R. EVID.701 for three reasons: (1) his
opinions were not limited to those rationally based on his
firsthand experience of searching appellant’s bedroom; (2) his
opinion testimony merely told the jury that he believed appellant
was selling cocaine and, therefore, was not helpful to the jury;
and (3) to the extent there was a basis for admission of his
opinion testimony, it was due to knowledge of the modus
operandi of cocaine dealers, specialized knowledge which falls
within the scope of FED. R. EVID.702. Because appellant did not
object at trial to the admission of Drewniak’s opinion testimony,
our review is for plain error, see United States v. Weaver, 281
F.3d 228, 231 (D.C. Cir. 2002), and appellant must show there
is error that is clear or obvious, and the error affected his
substantial rights, which in the ordinary case means it affected
the outcome of the trial, and the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings,
see United States v. Marcus, 130 S. Ct. 2159, 2164 (2010);
United States v. Olano, 507 U.S. 725, 731 (1993).

     At the time of appellant’s trial, this court had held that “[t]he
operations of narcotics dealers” are “a suitable topic for expert
testimony because they are not within the common knowledge of
the average juror.” United States v. Boney, 977 F.2d 624, 628
(D.C. Cir. 1992); see also United States v. Dunn, 846 F.2d 761,
763 (D.C. Cir. 1988). Since appellant’s trial, the court has
clarified that a witness may testify as to the typical
characteristics of drug trafficking operations only if first
qualified as an expert pursuant to FED. R. EVID.702. See Wilson,
605 F.3d at 1026; United States v. Smith, 640 F.3d 358, 365
(D.C. Cir. 2011). The government maintains that because FED.
R. EVID.702 imposes “no . . . procedural requirements,” FED. R.
EVID. 702, 2000 amendment advisory committee note, and a
district court 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.
                                  8

137, 152 (1999), it was permissible for the district court to allow
Drewniak to offer expert opinion testimony after listening to his
testimony describing his law enforcement experience. Perhaps,
but it is unnecessary to decide this question because, assuming
error, it did not affect the outcome of appellant’s trial.

      Appellant’s defense was that he did not have the visual
capacity to participate in a drug trafficking operation by cutting,
weighing, and packaging cocaine for sale. Defense counsel
theorized in opening and closing argument to the jury that
Sacreas, the basement tenant, had used the scale and coffee
grinders to prepare cocaine for distribution, without appellant’s
knowledge, and stored the items in appellant’s unlocked
bedroom. Part and parcel of this defense was that the Special
Agents who executed the controlled delivery were biased, having
been conditioned as a result of their law enforcement experience
and training to view the seized items, which have many possible
benign uses, as drug paraphernalia. Appellant now urges that
without Drewniak’s inadmissible lay opinion testimony linking
the items from appellant’s bedroom to cocaine distribution there
is a reasonable probability that the government would not have
met its burden of proof as to his intent to distribute cocaine. Yet
defense counsel conceded that all four Special Agents were
experienced law enforcement officers in drug trafficking and
treated Drewniak as an expert in drug trafficking operations.
Tellingly, appellant offers no response in his Reply Brief.

     Consequently, assuming Drewniak’s lay opinion testimony
was improperly admitted pursuant to FED. R. EVID. 701,
appellant fails to show that the error affected his substantial
rights by affecting the outcome of his trial, see United States v.
Ramsey, 165 F.3d 980, 984 (D.C. Cir. 1999), or adversely
affected the fairness, integrity, or public reputation of the judicial
proceedings.
                                 9

                                III.

     Rule 704 of the Federal Rules of Evidence, “Opinion on
Ultimate Issue,” provides that “[n]o expert witness testifying
with respect to the mental state or condition of a defendant in a
criminal case may state an opinion or inference as to whether the
defendant did or did not have the mental state or condition
constituting an element of the crime charged or of a defense
thereto.” Appellant contends that the district court abused its
discretion in excluding the expert evidence of an optometrist
specializing in low vision that appellant lacked the visual ability
to perform the activities underlying the charges. He maintains
this evidence was relevant, had an adequate basis in fact, and
addressed the issue of his capacity to use the seized items in his
bedroom to prepare and package cocaine for sale, an issue “quite
apart” from whether he possessed a particular mental state.
Appellant’s Br. 36.

     Prior to Dr. Feinberg’s testimony, the district court ruled that
Dr. Feinberg’s written report, which included the statement “I do
not believe Mr. Guerrero has the visual ability to perform the
activities for which he’s been charged,” would not be admitted.
Tr. 5/21/09 at 42 (quoting Dr. Stephen J. Feinberg’s Expert
Report). The district court ruled, rather, that Dr. Feinberg could
testify about what appellant “can see, what he could see in
October 2008, what he could do.” Id. at 41. Consistent with
these rulings, the district court allowed Dr. Feinberg to answer
the only two questions defense counsel asked relating to
appellant’s ability to use the items seized from his bedroom to
prepare and package cocaine for sale:

         [DEFENSE COUNSEL]: Would it be easy for Mr.
         Guerrero to see a white powder on a silver table top?
         [PROSECUTOR]: Objection, Your Honor.
         [DEFENSE COUNSEL]: Based on your examination of
                                10

         him and your knowledge of his visual acuity?
         [DR. FEINBERG]: I would think it highly unlikely that
         he would discern powder on a silver or white surface.
         [DEFENSE COUNSEL]: Based on your examination of
         him, would it be easier for him to see something blue
         on a white surface than a clear plastic bag?
         [PROSECUTOR]: Objection, Judge.
         [THE COURT]: I’ll allow it.
         [DR. FEINBERG]: Well, the answer would be yes,
         because I tend to harp on contrast. If I have family
         members present, somebody with these kinds of issues,
         I talk about contrast if they’re going to function with
         some sense of normalcy.

Id. at 59–60.

     In United States v. Salamanca, 990 F.2d 629 (D.C. Cir.
1993), the issue was whether the district court had erred in ruling
that a psychologist could not testify whether the defendant had
the capacity to have the mental state necessary for guilt. The
charges against Salamanca included attempting to kill a law
enforcement officer. At trial, the psychologist was permitted to
testify that in his opinion Salamanca suffered from “diffused
brain damage” consistent with alcohol abuse and that if a person
with this condition drank as much alcohol as Salamanca did on
the evening of the assault that person would have a diminished
capacity to think and plan. Id. at 636. This court rejected the
argument that the psychologist also should have been allowed to
testify as to “whether [Salamanca] had the ability and capacity
to plan an attack . . . under the circumstances,” id., holding that
the district court had “correctly restricted the scope of the expert
testimony, disallowing questions as to ‘the ultimate fact,’ and
providing leeway for [Salamanca] to elicit the witness’s opinion
about the capacities of a person of his purported mental condition
who had consumed the quantity of beer [Salamanca] allegedly
                                 11

drank on the night of the assault,” id. at 637.

     Likewise here, the district court properly excluded Dr.
Feinberg’s opinion on the ultimate question of appellant’s guilt
or innocence, see FED. R. EVID. 704, and afforded defense
counsel leeway to establish appellant’s inability to see and
perform activities underlying the charged offenses. Appellant’s
insistence that he was prejudiced because the excluded evidence
would have responded directly to Agent Drewniak’s lay opinion
testimony and informed the jury about what appellant could see
ignores Dr. Feinberg’s considerable testimony about appellant’s
poor vision, including that his vision was twelve times worse
than someone who was legally blind. Indeed, defense counsel
relied on his testimony in arguing to the jury in closing that
appellant could “absolutely not” see well enough to prepare and
package cocaine for sale. Tr. 5/21/09 at 102. Because the
defense was allowed to present expert testimony that addressed
appellant’s visual limitations, the district court’s rulings were not
an abuse of discretion. See United States v. Smart, 98 F.3d 1379,
1386 (D.C. Cir. 1996).

                                IV.

    Federal Rule of Evidence 405 permits cross examination of
a character witness only as to “relevant specific instances of
conduct.” Appellant contends guilt-assuming hypothetical
questions, by their nature, do not concern specific instances of
conduct and the district court plainly abused its discretion in
permitting the prosecutor to ask guilt-assuming hypothetical
questions of appellant’s neighbor. The prosecutor asked the
neighbor whether her opinion of appellant would change
“knowing the . . . charge is possession with intent to distribute
cocaine,” that items seized from appellant’s bedroom (two
coffee grinders with cocaine residue, a digital scale, and plastic
baggies) were used for distributing cocaine, and that he had
                                12

“received . . . a gold statue laden with over 300 grams of
cocaine” on the day he was arrested. Tr. 5/20/09 at 183-84. To
the extent the presence of the items and appellant’s receipt of the
statue were undisputed, it may be that these questions were not
guilt assuming. Compare United States v. Guzman, 167 F.3d
1350, 1352 (11th Cir. 1999); United States v. Williams, 738 F.2d
172, 177 (7th Cir. 1984); United States v. Mason, 993 F.2d 406,
408 (4th Cir. 1993), with United States v. Smith-Bowman, 76
F.3d 634, 636 (5th Cir. 1996); United States v. Velasquez, 980
F.2d 1275, 1277 (9th Cir. 1992). We need not decide because
even if the questions were guilt-assuming, appellant cannot
show error, much less plain error.

     In United States v. White, 887 F.2d 267 (D.C. Cir. 1989), the
court held that “[c]ross-examination of witnesses who testify
only to the defendant’s community reputation with hypotheticals
assuming guilt may be improper,” but that “similar cross-
examination of witnesses who -- as the witness did here -- give
their own opinion of the defendant’s character is not error.” Id.
at 274–75 (citations omitted); see United States v. Kellogg, 510
F.3d 188, 193-97 (3d Cir. 2007). Appellant’s neighbor testified
about her personal opinion of appellant’s character, not his
reputation in the community. Appellant acknowledges White,
but maintains it was wrongly decided, an argument that can only
be entertained by the en banc court. See LaShawn A. v. Barry,
87 F.3d 1389, 1395 (D.C. Cir. 1996).

    Accordingly, because appellant fails to show plain error or
an abuse of discretion by the district court, we affirm the
judgment of conviction.
