 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 14, 2012              Decided June 25, 2013

                        No. 10-3074

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

          JEROME HAMPTON, ALSO KNOWN AS JAY,
                     APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                  (No. 1:07-cr-00153-14)


    Christopher S. Rhee, appointed by the court, argued the
cause for appellant. With him on the briefs were Isaac B.
Rosenberg and Arthur Luk.

    Suzanne Grealy Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III, Mary B.
McCord, John K. Han, and Anthony Scarpelli, Assistant U.S.
Attorneys. Elizabeth Trosman, Assistant U.S. Attorney, entered
an appearance.

   Before: BROWN, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.
                                2

   Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

    Concurring opinion filed by Circuit Judge BROWN.

     RANDOLPH, Senior Circuit Judge: A jury, after a retrial,
convicted Jerome Hampton of conspiracy to distribute and to
possess with intent to distribute phencyclidine (PCP). See 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iv). The first trial, prosecuted
against several alleged members of the conspiracy, ended in a
mistrial for Hampton after the jury failed to reach a verdict with
respect to him. Hampton argues that in his retrial the district
court violated Rule 701 of the Federal Rules of Evidence when
it permitted the FBI’s administrative case agent to testify about
his understanding of recorded conversations played for the jury.

     The FBI recorded the conversations during its investigation
of a D.C.-based drug ring led by Lonnell Glover. Glover’s
network distributed PCP Glover purchased from out-of-state
suppliers through an intermediary, Velma Williams. Williams
pleaded guilty before the first trial and testified for the
government in that trial and in Hampton’s retrial. The jury
convicted Glover in the first trial. The government alleged that
Glover paid Hampton to receive shipments of PCP at his place
of business and that several shipments of the drug were
delivered there. Williams testified that Hampton knowingly and
willingly participated in Glover’s drug operation by receiving
packages shipped through FedEx and UPS.

      FBI Agent Bevington was a key witness against Hampton
at trial. The government did not attempt to qualify him as an
expert witness under Rule 702 of the Federal Rules of Evidence.
Instead, he was called as a lay witness. Agent Bevington
testified that he had 20 years of FBI experience at the time of
this trial, including more than 100 drug investigations and more
                                   3

than 50 investigations with court-ordered wiretaps. With respect
to Glover’s drug operation, Bevington testified that he was the
case agent—the supervisor of the FBI agents conducting the
investigation. In that capacity, he monitored wiretaps,
performed physical surveillance, provided daily reports to the
United States Attorney’s Office, and supervised other personnel
monitoring the wiretaps. He also testified that he had reviewed
every conversation—some 20,000—captured by the wiretaps,
not just the 100 or so recordings admitted into evidence. The
government put Bevington on the stand five times during the
trial, usually to give the context and an explanation of recorded
statements admitted into evidence. As the government told the
jury during its opening statement, the recorded telephone calls
were “very, very cryptic,” and the government used Bevington
to interpret them for the jury.

     Federal Evidence Rule 701 permits lay testimony in the
form of an opinion when it meets the following criteria: it must
be rationally based on the witness’s perception and helpful to the
jury in understanding the witness’s testimony or the
determination of a “fact in issue,” and may not be based on the
kind of specialized knowledge possessed by experts within the
scope of Rule 702.1 We review the district court’s admission of
evidence for abuse of discretion. United States v. Williams, 212
F.3d 1305, 1308 (D.C. Cir. 2000).

    When there has been a proper objection, the district court of
course must determine whether the lay witness’s opinion


     1
        The full text of Rule 701 is as follows: “If a witness is not
testifying as an expert, testimony in the form of an opinion is limited
to one that is: (a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702.”
                                4

testimony satisfies Rule 701’s requirements. See Williams, 212
F.3d at 1309–10 & n.6; see also 29 CHARLES ALAN WRIGHT,
KENNETH W. GRAHAM, JR., VICTOR JAMES GOLD & MICHAEL H.
GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE
§§ 6254, 6255 (1997 & Supp. 2013); Anne Bowen Poulin,
Experience-Based Opinion Testimony: Strengthening the Lay
Opinion Rule, 39 PEPP. L. REV. 551, 595–96, 610–11 & n.227,
(2012).

     Jurors too must independently assess the basis of the
opinion and scrutinize the witness’s reasoning. But “[w]hen a
witness has not identified the objective bases for his opinion, the
proffered opinion obviously fails completely to meet the
requirements of Rule 701, first because there is no way for the
court to assess whether it is rationally based on the witness’s
perceptions, and second because the opinion does not help the
jury but only tells it in conclusory fashion what it should find.”
United States v. Rea, 958 F.2d 1206, 1216 (2d Cir. 1992).
Enforcement of Rule 701’s criteria thus ensures that the jury has
the information it needs to conduct an independent assessment
of lay opinion testimony. Judicial scrutiny of a law-enforcement
witness’s purported basis for lay opinion is especially important
because of the risk that the jury will defer to the officer’s
superior knowledge of the case and past experiences with
similar crimes. United States v. Grinage, 390 F.3d 746, 750–51
(2d Cir. 2004).

     Here, the district court’s failure to enforce Rule 701’s
boundaries on lay-opinion testimony denied the jury the
information it needed to assess the FBI agent’s interpretations of
recorded statements.

     On several occasions the district court allowed Agent
Bevington to provide opinions about the meaning of ambiguous
references in recordings admitted into evidence. The prosecutor,
                                   5

for example, played a tape in which Velma Williams asked
Lonnell Glover: “[H]ave you talked [to] your brother? . . . [H]e
say he feeling fine then?” The prosecutor then asked Agent
Bevington to interpret the questions. When Agent Bevington
opined that Williams was referring to Hampton, defense counsel
objected, calling this mere speculation, and adding at the bench
conference that Glover himself had a brother. In response to the
court’s question about the basis of Bevington’s opinion, the
prosecutor replied: “I think he has listened to all of the calls, and
he’s done the surveillance, and he has seen all of the evidence in
this case, and he has based his opinion . . . on this investigation.”
Apparently convinced, the court overruled the objection.

     That was only one of several such exchanges. After
considering Hampton’s objection that Agent Bevington’s
opinions about the meaning of certain terms used by the
participants in the recordings were admissible only as expert
testimony, the district court ruled that it would allow the
testimony “because of the work here in this case where [Agent
Bevington] has testified that he listened to thousands of
conversations” recorded during the investigation.

     The prosecutor asked Agent Bevington what he thought
Glover meant when he said to Hampton during a phone call,
“[s]o a boy come pick me up, then I had to ride around with him,
when I see you I’m gonna tell you everything been going on, I
just man you talking about a hectic [expletive deleted] day.”2
The court overruled Hampton’s objection and explained, “I
think that there is sufficient basis on the record with the


     2
        Immediately before this statement, Glover mentioned his
activities: he took his mother for treatment of an infection the previous
day and stayed with her until 8 p.m., “then [he] had to run around”
until midnight, he started getting calls at 6 a.m., and he took his
truck—used in his hauling business—to the repair shop.
                                6

sequence and the contents of each of these phone calls, and
Agent Bevington has experience in this case from reviewing all
of the thousands of phone calls and understanding, so he can talk
about his opinion as to what he believed they were discussing
when he says that.” The agent testified that he believed the
statement indicated that Glover was planning to tell Hampton,
when they met in person, that on the previous day police had
executed a search warrant on the home of one of Glover’s
lieutenants and had seized PCP there.

     On cross-examination, defense counsel challenged the basis
for that opinion. The agent defended his testimony, stating,
“There is more to it based on other activations on the phone and
in the truck,” and “it is based on other conversations.” When
asked if someone else could understand the statement
differently, Agent Bevington replied, “If they just had this
portion of the conversation and didn’t know other things about
the investigation and other conversations, maybe. But I
think—anybody who has listened to all of the calls and is aware
of all of the conversations would agree with me.”

     When an agent, particularly a case agent, see United States
v. Dukagjini, 326 F.3d 45, 53–55 (2d Cir. 2003), provides
interpretations of recorded conversations based on his
“knowledge of the entire investigation,” “the risk that he was
testifying based upon information not before the jury, including
hearsay, or at the least, that the jury would think he had
knowledge beyond what was before them, is clear.” Grinage,
390 F.3d at 750; see also United States v. Garcia, 413 F.3d 201,
213–15 (2d Cir. 2005). The Grinage court held that the agent’s
interpretation of conversations in that case was not a permissible
lay opinion under Rule 701 “because, rather than being helpful
to the jury, it usurped the jury’s function.” 390 F.3d at 751.
                                7

     Grinage and this case are basically the same, with one
important difference, a difference that highlights the error in
admitting Agent Bevington’s opinion testimony. In Grinage the
government recorded 2000 telephone calls from the defendant’s
cellular phone. 390 F.3d at 747. Although the prosecution
played only 13 of these calls for the jury, all 2000 were admitted
into evidence. Id. at 747–48. Here there were approximately
20,000 recorded calls, but only 100 or so were admitted into
evidence, and fewer still were played in court. And so when
Bevington interpreted those conversations on the basis of his
listening to “all of the calls,” the jury had no way of verifying
his inferences or of independently reaching its own
interpretations.

     We draw further support for our conclusion from cases
discussing the government’s use of summary or overview
witnesses at trial, the analysis of which, we have noted,
approaches the question presented here but from a different
perspective. See United States v. Moore, 651 F.3d 30, 57 (D.C.
Cir. 2011) (per curiam) (citing Garcia, 413 F.3d at 211–17); see
also Garcia, 413 F.3d at 214–15; United States v. Casas, 356
F.3d 104, 117–20 (1st Cir. 2004). There is an overarching
concern in that context with a witness using, as the basis for his
opinion, evidence outside the record. “Such testimony raises the
very real specter that the jury verdict could be influenced by
statements of fact or credibility assessments in the overview but
not in evidence.” Moore, 651 F.3d at 57 (quoting Casas, 356
F.3d at 119–20) (brackets omitted).

     These concerns also arise in cases addressing claims of
prosecutorial misconduct for statements of opinion made during
closing arguments. When a prosecutor gives his personal
opinion on the credibility of witnesses or the defendant’s guilt,
the Supreme Court explained that “such comments can convey
the impression that evidence not presented to the jury, but
                                  8

known to the prosecutor, supports the charges against the
defendant and can thus jeopardize the defendant’s right to be
tried solely on the basis of the evidence presented to the jury.”
United States v. Young, 470 U.S. 1, 18 (1985). “The
prosecutor’s opinion,” the Supreme Court reasoned, “carries
with it the imprimatur of the Government and may induce the
jury to trust the Government’s judgment rather than its own
view of the evidence.” Id. at 18–19. In nonetheless finding in
that case that the remarks were not so harmful as to compromise
the jury’s deliberations, the Court noted that the prosecutor’s
statement “contained no suggestion that he was relying on
information outside the evidence presented at trial.” Id. at 19.

     For all of these reasons, we agree with Hampton that the
district court abused its discretion in allowing Agent
Bevington’s opinion testimony in violation of Rule 701.3

    Contrary to the government’s contentions, we cannot
conclude that the errors were harmless. The government’s
evidence consisted largely of wiretap interceptions and
recordings from a listening device. As a result, Agent
Bevington’s interpretations of conversations played a key role

     3
       Agent Bevington was permitted to testify about the meaning of
non-coded terms participants used in conversations. For instance, in
the recorded conversation mentioned earlier, Glover told Hampton that
“when I see you I’m gonna tell you everything been going on.” Over
a defense objection, Bevington stated that Glover meant he would tell
Hampton about the seizure of PCP pursuant to a search warrant.
Several courts of appeals have held that Rule 701 does not permit lay
opinion testimony interpreting “clear statements,” United States v.
Dicker, 853 F.2d 1103, 1109 (3d Cir. 1988), or “plain English words
and phrases,” United States v. Peoples, 250 F.3d 630, 640 (8th Cir.
2001). But cf. United States v. Rollins, 544 F.3d 820, 831–32 (7th Cir.
2008). Given our analysis we need not rely on this additional line of
authority.
                               9

in the government’s presentation to the jury. See Grinage, 390
F.3d at 751–52. Apart from the recorded conversations, the
government’s other major source of evidence was the testimony
of Velma Williams. The jury had reasons to doubt her
credibility and discount her testimony. Williams pleaded guilty
to conspiracy under a deal with the government and hoped to
benefit at sentencing by cooperating in Hampton’s prosecution.
When confronted with inconsistencies between her testimony
and a note she had written about Hampton and Glover before
pleading guilty, she cried on the stand.

     The prosecution was unable to point to any money, drugs,
weapons, or other evidence seized by law-enforcement
personnel that could be tied to Hampton’s alleged role in the
conspiracy. There was never a wiretap on Hampton’s phone.
There were no witnesses who saw the contents of the packages
shipped to Hampton’s office park. Nor did the government ever
seize those packages.

     In light of the importance of Agent Bevington’s opinion
testimony to the government’s case, the weakness of the
government’s other evidence, and the likelihood that the jurors
afforded Bevington substantial authority because of his expertise
and access to information unavailable to them, we cannot say
“with fair assurance” that the error did not substantially affect
the jury’s verdict. Kotteakos v. United States, 328 U.S. 750, 765
(1946); see Grinage, 390 F.3d at 752.

     Hampton also claims that some of Bevington’s opinions,
admitted as lay testimony, constituted expert testimony and thus
should have been subject to the requirements of Federal Rule of
Evidence 702. The agent gave his opinion on why drug
traffickers use code when talking on the phone, based on his
“experience of listening to wiretap interceptions.” He also
testified that “water” and “boat” mean PCP, and that in his
                              10

experience the term “dope” means heroin. We have recently
addressed this precise issue, see United States v. Glover, 681
F.3d 411, 422 (D.C. Cir. 2012); United States v. Smith, 640 F.3d
358, 365 (D.C. Cir. 2011), and find that these statements
constituted expert testimony within the scope of Rule 702.
Whether those particular errors—errors because Bevington was
never qualified as an expert—were harmless is unnecessary to
decide in light of our conclusion that Hampton’s conviction
must be vacated for the reasons stated above.

    The judgment of conviction is vacated, and the matter is
remanded for further proceedings.

                                                    So ordered.
     BROWN, Circuit Judge, concurring: I agree that “when
Bevington interpreted th[e] conversations on the basis of his
listening to ‘all of the calls,’ the jury had no way of verifying
his inferences or of independently reaching its own
interpretations.” Panel Op. 7. But as I see it, the problems do
not end there. By testifying on numerous occasions on the
meaning of ordinary—albeit cryptic—recorded language,
Agent Bevington trespassed into the jury’s domain.

     Let’s start with the sort of opinion testimony a witness
may give in interpreting wiretapped conversations. An expert
witness may interpret for a jury coded language generally
used in drug conspiracies, much as a lay witness with
personal knowledge of a particular drug conspiracy may
testify on the meaning of coded language specific to that
conspiracy. See United States v. Wilson, 605 F.3d 985, 1025–
26 (D.C. Cir. 2010); United States v. Rollins, 544 F.3d 820,
830–32 (7th Cir. 2008). Yet neither category encompasses
Agent Bevington’s testimony on the wiretapped conversations
in this case. Under the guise of lay opinion testimony, he
explained the inferences the jury should draw from recorded
conversations involving ordinary language. At that point, his
testimony transformed from evidence into argument. See
United States v. Peoples, 250 F.3d 630, 640–42 (8th Cir.
2001).

     Take, for example, “Activation 100,” a conversation
between Lonnell Glover and Coolridge Bell, who was also
indicted as a coconspirator:

       Glover:         Now I pay my man 5,000 for
                       every time a 10 of those UI
                       [unintelligible] come in?
       Bell:           Huh?
       Glover:         Every time 10 come in, I give
                       him 5.
       Bell:           UI.
                             2
       Glover:       Naw to receive it.
       Bell:         Oh UI.
       Glover:       I pays everybody well man.
                     That’s what I’m saying there
                     ain’t no whole lot of room in
                     this shit for me right.
                            ....
       Glover:       UI I give him 5, okay so he’ll
                     wind up making $25,000.00,
                     just receiving and picking the
                     shit up for me.
       Bell:         UI.
       Glover:       Alright and I’ll take it and put it
                     other places. I pay the peoples
                     fucking bills you know what
                     I’m saying?

From this barely coherent exchange, Agent Bevington
somehow divined that “Mr. Glover is talking to Coolridge
Bell about paying Mr. Hampton for receiving shipments of
PCP. . . . $5,000 every time ten gallons were received.”

     Consider also “Activation 5982,” referenced in the
opinion: “So a boy come pick me up, then I had to ride around
with him, when I see you I’m gonna tell you everything been
going on, I just man you talking about a hectic motherfucking
day.” Somehow, when passed through Agent Bevington’s
interpretive prism, this jumble of vagaries becomes crystal
clear: Glover was “talking about Mr. Suggs coming to pick
him up after he dropped his truck off in the shop, and he is
going to tell Mr. Hampton what happened with the search
warrant and everything related to that.” That is not to say a
juror could not have reached the same conclusions, but rather
that such conclusions are fit only for a juror to reach.
                               3
     As the panel recognizes, the reasoning in United States v.
Grinage, 390 F.3d 746 (2d Cir. 2004), readily applies to the
facts of this case. Panel Op. 6–7. I fear, however, that based
on our discussion, a casual reader may infer only one guiding
principle from Grinage. In actuality, two may be distilled, and
both apply here: First, the jury must not be deprived of the
opportunity to independently evaluate the foundation for such
testimony based on facts in evidence. See 390 F.3d at 750
(“Whether labeled as an expert or not, the risk that [the
witness] was testifying based upon information not before the
jury, including hearsay, or at the least, that the jury would
think he had knowledge beyond what was before them, is
clear.”). Second, even if the testimony draws its inferences
based only on facts in evidence, it may nonetheless
impermissibly supplant the jury’s factfinding role. A lay
opinion witness may tell jurors “what was in the evidence,”
but not “tell them what inferences to draw from it,” for that
responsibility is up to the jury and the jury alone. Id. As the
panel explained, “‘rather than being helpful to the jury,’” such
testimony “‘usurp[s] the jury’s function.’” Panel Op. 6
(quoting Grinage, 390 F.3d at 751).

    Admitting Agent Bevington’s testimony under Rule 701
was error. But just to be clear: had the government in this case
placed into evidence the literally thousands of recorded
conversations, the conclusion would be the same. Lambasting
the jury with reams of additional evidence while still
according magisterial status to Agent Bevington’s inferences
would do nothing to fix his intrusion on the factfinder’s
function.
