                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       March 27, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-1201
          v.                                         District of Colorado
 RICH AR D POW ELL,                            (D.C. No. 04-CR-514-EW N-02)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M cCO NNELL, T YM KOVICH, and BALDOCK , Circuit Judges.


      The United States charged Richard Pow ell in connection with a massive

drug conspiracy prosecution embracing some thirty-one defendants and 137

counts of criminal conduct. M r. Pow ell was charged w ith sixteen counts,

including conspiracy to possess and distribute cocaine in both its base and powder

forms. 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A). Twelve counts went to the jury,

which convicted the defendant on ten. At sentencing, the district court found M r.

Pow ell had been previously convicted of at least two drug offenses and was

therefore subject to mandatory life sentences on counts 1 and 38. The court


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th
Circ. R. 32.1.
sentenced Pow ell to concurrent life terms on seven other counts, and to a term of

four years on count 37— use of a communication facility in the commission of a

drug offense.

      M r. Pow ell appeals from the judgment against him, alleging numerous

abuses of discretion in the trial court’s evidentiary rulings, as well as insufficient

evidence to support his conviction on counts 23, 96, and 97. Apart from the

sufficiency issue, which the government concedes, we conclude that none of M r.

Powell’s challenges holds merit.



                          I. O fficer Stanton’s Testimony

      At trial, police officer Steven Stanton testified as to the meaning of certain

words— “nina,” “yam,” and “hizzone” among them— used in recorded

conversations between the defendant and his alleged co-conspirators. Officer

Stanton based his testimony on personal experience in prior drug investigations.

M r. Powell contends that the district court erred by admitting Officer Stanton’s

testimony as lay opinion. He also contends that Officer Stanton’s testimony

violated his Sixth Amendment confrontation right.

      As an initial matter, we must determine the proper standard of review. M r.

Pow ell would have us review for harmless error, while the government contends

that the defendant did not properly preserve the issue and must now demonstrate

that any errors were plain. To preserve an evidentiary ruling for appeal, the

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defendant must object during the course of trial, unless the issue was clearly

raised and ruled on before proceedings commenced. United States v. Harrison,

296 F.3d 994, 1002 (10th Cir. 2002). M r. Pow ell did not object at trial to Officer

Stanton’s testimony as a lay witness. He did, however, lodge an objection before

trial. In a series of pre-trial proceedings, the government notified the court that it

intended to call Officer Stanton as an expert witness. M r. Powell objected to

Stanton’s testimony under any guise, arguing in part that Federal Rule of

Evidence 701 prohibited the officer from testifying as a layman.

      This pre-trial objection might have been sufficient to preserve the issue for

appeal, had the district court based its rulings on Rule 701 grounds. But the

district court did not. Instead, the court initially ignored M r. Pow ell’s Rule 701

argument and agreed to admit Officer Stanton as an expert witness under Rule

702. After trial began, the court switched course and refused to permit Officer

Stanton to testify as an expert. Yet the defendant did not then renew his objection

to Stanton’s testimony under Rule 701. Consequently, at no time did the district

court rule definitively on the defendant’s Rule 701 objection. See Harrison, 296

F.3d at 1002 (holding that a party need not renew a pre-trial objection when the

issue was “ruled upon without equivocation by the trial judge”); see also Fed. R.

Evid. 103(a). When a defendant properly fails to preserve an issue for appeal, w e

will reverse only if the error is plain. United States v. M cDonald, 933 F.2d 1519,

1524 (10th Cir. 1991).

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      A plain error is one that implicates substantial rights and seriously affects

the fairness, integrity, or public reputation of the judicial proceedings. Id.

Officer Stanton’s testimony, even if error, does not qualify. By the time Stanton

offered his opinion about the meaning of various words in the defendants’

recorded conversations, the jury had already heard testimony from six co-

defendants claiming that those words were code and purporting to explain what

the conspirators, including M r. Powell, meant by them. Officer Stanton’s

testimony regarding the meaning of these words thus added little to the extensive

evidence already on the record. The defendant fails to demonstrate how Officer

Stanton’s largely duplicative testimony infringed the defendant’s right to a fair

trial. United States v. Bornfield, 145 F.3d 1123, 1129 (10th Cir. 1998).

      For the same reason, we reject M r. Powell’s Sixth Amendment claim.

W hile the introduction of testimonial hearsay violates the defendant’s Sixth

Amendment right to confront his accuser, Davis v. Washington, 126 S. Ct. 2266,

2273-74 (2006), because the defendant did not object at trial, the violation

requires reversal only when the error w as plain, United States v. Perez, 989 F.2d

1574, 1582 (10th Cir. 1993) (en banc). Assuming that Officer Stanton did rely in

his testimony on inadmissible hearsay, the damage to M r. Pow ell’s rights was,

legally speaking, harmless. Stanton’s testimony merely reiterated claims already

lodged by multiple other witnesses, each of whom participated personally in the




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drug conspiracy at issue. Here again, there was more than enough evidence for

the jury to convict M r. Powell apart from Officer Stanton’s testimony.



              II. Testimony of Agent W ilcox and Detective W erth

      The prosecution called FBI Agent Todd W ilcox and Denver, Colorado,

Police Detective Nick W erth to provide extensive background on the course of the

government investigation. In addition to their eyewitness observations, these

officers’ testimonies included descriptions of surveillance in which they were not

personally involved and information gleaned from informants. M r. Powell objects

to these statements as “pervasive hearsay,” though he provides nary a single

record citation in his opening brief to any alleged hearsay statement and failed at

trial to object to any of the testimony he now apparently challenges. W e review

for plain error. United States v. Youts, 229 F.3d 1312, 1320 (10th Cir. 2004).

      W e have previously held that “out of court statements are not hearsay when

offered for the limited purpose of explaining why a Government investigation was

undertaken,” United States v. Becker, 230 F.3d 1224, 1236 (10th Cir. 2000)

(internal citations omitted), for the simple reason that such statements are not

m ade to prove the truth of the matter asserted. Fed. R. Evid. 801(c). The two

officers’ testimonies here fit that description. Officers W ilcox and W erth

explained in some detail the operation of wiretaps, of controlled buys, and

undercover operations; they explained why police directed the investigation as

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they did. To be sure, in the course of their testimonies the officers referred to

several out-of-court statements made by informants, as well as to general

information gathered from the investigation. In context, however, these

references served merely as narrative foundation for the officers’ own personal

observations. The government did not attempt to use the statements as evidence

of M r. Pow ell’s guilt, and indeed, these reports constituted only a small portion of

the officers’ testimonies.

      Our precedent allow s officers to testify to out-of-court statements if those

statements are few in number, confined in scope to explaining the impetus for the

investigation, and not used by the government to prove elements of the crime.

United States v. Cass, 127 F.3d 1218, 1222-24 (10th Cir. 1997). Each condition

obtains here. W e find no error in the testimonies of Officers W ilcox and W erth.



                               III. Plea A greem ents

       In its direct examination of Agent W ilcox, the government elicited

testimony that three non-testifying co-defendants had pled guilty. On cross-

examination, defense counsel went farther: he methodically named twenty-three

co-defendants and asked Agent W ilcox to confirm that each had made a plea deal

with the government. The defendant used this information to cast aspersions on

the co-defendants’ veracity, many of whom testified against him. By way of

rebuttal, the prosecutor explicitly urged the jury during his closing argument to

                                          -6-
weigh the co-defendants’ decisions to plead and go to prison as evidence of their

credibility. M r. Powell now maintains that evidence of co-defendant pleas should

not have been admitted or mentioned by the prosecutor in closing. Because he

did not object at trial, however, our review is again for plain error. Youts, 229

F.3d at 1320.

      This Court has clearly disapproved of the mention of co-defendants’ plea

agreements, especially when the co-defendants in question do not testify. “D ue to

the extreme and unfair prejudice suffered by defendants . . . courts and

prosecutors generally are forbidden from mentioning that a codefendant has either

pled guilty or been convicted.” United States v. Austin, 786 F.2d 986, 991 (10th

Cir. 1986) (internal citations omitted). But reversal is not automatic. As w ith

other trial errors, the improper admission of a co-defendant’s plea agreement is

analyzed for prejudice— in this case, for plain error. United States v. Baez, 703

F.2d 453, 455 (10th Cir. 1983).

      The evidence to which M r. Pow ell objects is of two types: evidence of plea

agreements made by non-testifying co-defendants, and evidence of agreements

made by testifying co-defendants. The former is more problematic, and we begin

our analysis there. W hile the mention of any co-defendant’s plea arrangement is

disfavored, references to the guilty pleas of non-testifying co-defendants are

particularly troubling. Id. These references encourage the jury to find the

defendant guilty by association. They function as testimony against the

                                         -7-
defendant, but because the “witness” is not actually present in court, the

defendant has no opportunity to challenge the declarant’s credibility. See United

States v. Hansen, 544 F.2d 778, 780 (5th Cir. 1977).

      After reviewing the record, however, we conclude that Agent Wilcox’s

mention of the three non-testifying co-defendants’ guilty pleas did not harm the

defendant’s substantial rights and is therefore not plain error. The differences

between the circumstances of this case and those where our Court has found plain

error are instructive. In United States v. Austin, for instance, the government

argued to the jury that the plea bargains made by non-testifying co-conspirators

established an element of the crime with which the defendants were charged. 786

F.2d at 991. Similarly, in United States v. Smith, 806 F.2d 971, 974 (10th Cir.

1986), our Court reversed after the prosecutor implied that co-conspirators’ plea

agreements constituted evidence of the defendant’s guilt.

      In the instant case, by contrast, “there w as no fanfare w hen the pleas w ere

admitted, and the government made no improper arguments based on those pleas.”

United States v. Carraway, 108 F.3d 745, 755-56 (7th Cir. 1997). In fact, the

prosecuting attorney personally made no mention of the non-testifying

defendants’ guilty pleas. The only party who did mention the pleas was the

defendant. It is rather remarkable that M r. Powell now objects so strenuously to

evidence his counsel independently introduced.




                                          -8-
      But more importantly for our review, the independent evidence against the

defendant w as strong. Id. at 756. Considering the trial record as a w hole, we are

confident that the jury’s verdict was untainted by the improper references to the

pleas of non-testifying co-defendants.

      The government’s references to the plea bargains reached by testifying co-

defendants is relatively less problematic. W e have held that prosecutors are

entitled to introduce evidence of testifying co-defendants’ plea agreements “so

that the jury may assess the credibility of the witness the government asks them to

believe.” United States v. Whitney, 229 F.3d 1296, 1306 (10th Cir. 2000)

(internal citations omitted). Contrary to M r. Pow ell’s assertions, the government

need not wait to introduce this evidence until after the defense has mounted an

impeachment challenge. Rather, “either the government or the defense may elicit

testimony from a co-defendant regarding his guilty plea for purposes of aiding the

jury in its assessment of the co-defendant’s credibility as a witness.” Id. at 1304.

      M r. Pow ell did in fact question the credibility of the testifying co-

defendants by repeatedly raising the specter of their plea bargains. In light of this

trial strategy, the prosecution’s attempt to spin the guilty pleas in the opposite

direction by mentioning them at closing argument— as evidence of the w itnesses’

credibility— was entirely justified. The prosecution did not encourage the jury to

treat the plea agreements as evidence of M r. Powell’s guilt, United States v.

Peterman, 841 F.2d 1474, 1479 (10th Cir. 1988), but argued only that jurors

                                          -9-
should weigh them in evaluating the witnesses’ truthfulness. In keeping with our

precedent, the district court issued a limiting instruction directing the jury to

consider the agreements only for the purpose of assessing witness credibility. See

Baez, 703 F.2d at 455 (reversing in part because trial court failed to issue limiting

instruction). The government’s use of the testifying co-defendant’s plea bargains

was legitimate. We find no error.



                          IV . Testim ony of G abriel D avis

      In an effort to salvage the credibility of w itness Gabriel Davis after close

questioning by defense counsel, the prosecution prodded M r. Davis on redirect

examination to rehearse various statements he made to police officers following

his arrest, statements consistent with those he offered the jury on direct

examination. M r. Pow ell contends that these out-of-court statements are hearsay

and do not qualify for the prior-consistent-statement exception of Federal Rule of

Evidence 801(d)(1)(B). H e did not make this objection at trial in so many words.

Instead, he objected to M r. Davis’s redirect testimony as beyond the scope of

direct examination. In response to the defendant’s objection, the government

argued that M r. Davis’s prior consistent statements should come in under Rule

801(d)(1)(B). The district court overruled the defendant’s objection, apparently

on this ground. Thus the Rule 801 issue was raised and ruled upon and preserved




                                          -10-
for appellate review, if somewhat circuitously. W e review for harmless error.

United States v. Perdue, 8 F.3d 1455, 1469 (10th Cir. 1992).

      The U.S. Supreme Court has made clear that Rule 801(d)(1)(B) permits the

introduction of a declarant’s prior consistent statement to rebut a charge of recent

fabrication, but only if the statement was made before the declarant’s arrest.

Tom e v. United States, 513 U.S. 150, 167 (1995). Gabriel Davis’s prior

consistent statements followed his arrest, however, meaning that, according to the

logic of our precedent, the statements came after M r. Davis had acquired a motive

to lie. United States v. M oreno, 94 F.3d 1453, 1455 (10th Cir. 1996). Thus, M r.

Davis’s prior consistent statements were inadmissible hearsay.

      But though the admission of M r. Davis’s prior statements constituted error,

we conclude that the error was harmless. The defendant fails to demonstrate that

the district court’s misruling had a “substantial influence” on the outcome or

should leave this Court in “grave doubt” as to the verdict’s validity. United

States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (quoting Kotteakos v.

United States, 328 U.S. 750, 765 (1946)). M r. Powell’s only argument on this

score is that because Davis “was one of the witnesses” directly connecting the

defendant to the drug transactions, Aplt. Br. 34, the absence of M r. Davis’s

testimony might have altered the jury's decision. The defendant is right, in a

sense: Davis was just one of multiple witnesses linking the defendant to the

criminal transactions at issue. M oreover, not all of Davis’s testimony was

                                         -11-
inadmissible— merely a small portion offered on redirect examination. M ost of

M r. Davis’s testimony was perfectly legitimate and remains intact. Given this

and the other, overw helming evidence against the defendant, the district court’s

erroneous admission of Davis’s prior consistent statement does not leave us in

“grave doubt” about the trial’s outcome. The error w as harmless.



                                    V. W iretaps

      As part of their investigation, police sought and obtained fourteen wiretap

orders and introduced at trial conversations gathered pursuant to thirteen of them.

M r. Powell alleged that the orders w ere improperly granted and moved to

suppress. The trial court denied M r. Pow ell’s motion. M r. Pow ell appeals the

denial as to eleven of the orders. This Court will reverse a district court’s

decision to issue wiretaps only if that decision was arbitrary, capricious, or

whimsical, or results in a manifestly unreasonable judgment. United States v.

Nickl, 427 F.3d 1286, 1300 (10th Cir. 1995). After thoroughly reviewing the

record, we conclude that the issuing court did not abuse its discretion.

      In order to obtain a wiretap, the government must show that traditional

investigative techniques failed or were too dangerous to attempt. 18 U.S.C. §§

2518(1)(c), 2518(3)(c). If any traditional investigative techniques were not tried,

the government must explain why with particularity. United States v. M itchell,

274 F.3d 1307, 1310 (10th Cir. 2001). In a word, the government must

                                         -12-
demonstrate that the wiretaps were necessary. United States v. Ram irez-

Enarnacion, 291 F.3d 1219, 1222 (10th Cir. 2002). Once a wiretap has been

approved, the defendant bears the burden of showing it invalid. United States v.

Quintana, 70 F.3d 1167, 1169 (10th Cir. 1995).

      Each of the wiretap applications challenged by M r. Pow ell is supported by

numerous pages of specific, sworn testimony explaining why a wiretap was

necessary. Police investigators carefully explained their investigative methods,

and set out in some detail why traditional techniques had failed. Among the

explanations offered: The defendants had become aware of police surveillance

and adopted counter-surveillance measures; police could not confirm the

residence of one or more of the defendants in order to obtain a search warrant;

police were unable to identify all of the defendants’ drug suppliers through

standard surveillance. Pen registers and other traditional methods could not, the

affidavits claim, “identify the source or sources of the controlled substances” or

the “the persons involved in storage or distribution.” A nd while investigators

managed to acquire a confidential informant within the drug operation, they

feared to press him for useful information about M r. Pow ell on the suspicion that

he was ultimately loyal to the defendant and would alert M r. Powell to their

ongoing investigation.

      Given this factual background, we find the issuing judge’s decisions w ell

within the bounds of permissible choice. Nickl, 427 F.3d at 1300. M r. Powell

                                        -13-
contests the issuing court’s interpretation of the affidavits and would have us do

the same. But our review is not de novo. The facts the affidavits set out are more

than sufficient to support a finding of necessity. Having made this judgment, our

review is at an end. The issuing court did not abuse its discretion.



                               VI. Cum ulative Error

      M r. Powell urges us to find that even if the errors he alleges are

individually harmless, they create, in the aggregate, a critical mass of prejudice

that trenches on his substantial rights. W e are indeed bound to consider whether

the cumulative effect of otherwise harmless errors violated M r. Pow ell’s right to a

fair trial. And if any of the errors to be aggregated is constitutional, the

cumulative error must be harmless beyond a reasonable doubt. United States v.

Toles, 297 F.3d 959, 972 (10th Cir. 2002). Should we conclude otherwise,

reversal is the remedy. But only actual errors factor in our analysis. Id.

      W e have assumed one actual error— the introduction of O fficer Stanton’s

lay opinion testimony premised on testimonial hearsay— and positively identified

two others: the admission of Gabriel Davis’s prior-consistent statements and the

government’s reference to the guilty pleas of three non-testifying co-defendants.

Yet after examining the proceedings below in their entirety, we are persuaded that

the outcome would not have been different even had these errors been corrected.




                                         -14-
W e are convinced beyond a reasonable doubt that the cumulative effect of these

errors was harmless.



                        VII. Insufficiency of the Evidence

      The government concedes that the evidence adduced at trial was

insufficient to support the jury’s convictions on counts 23, 96, and 97. W hile w e

have the authority to remand for entry of judgment on a lesser-included offense,

we note that the trial court did not issue lesser-included-offense instructions to

the jury and the defendant has not admitted his guilt as to any such offenses.

United States v. M itcheltree, 940 F.2d 1329, 1352 n.17 (10th Cir. 1991).

M oreover, entering judgment on lesser-included offenses w ould leave M r.

Powell’s total sentence— he was properly convicted and sentenced to six

concurrent life terms— unaffected.

      Therefore we VAC ATE M r. Pow ell’s convictions on counts 23, 96, and 97

and direct the district court to modify its judgment accordingly. W e AFFIRM M r.

Powell’s convictions on all remaining counts.



                                                    Entered for the Court,

                                                    M ichael W . M cConnell
                                                    Circuit Judge




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