UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4522

UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
ALTON BENN,
Defendant Appellant.

No. 12-4803

UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
SEAN DARNELL JEFFRIES,
Defendant Appellant.

No. 12-4804

UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.

ROBERT EUGENE POOLE,

Defendant Appellant.

No. 12-4851

UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
KEVIN GORDON HAITH,
Defendant Appellant.

Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge.
(1:11-cr-00127-TDS-2;
1:11-cr-00127-TDS-1;
1:11-cr-00127-TDS-4; 1:11-cr-00127-TDS-3)

Argued:

April 11, 2014

Decided:

May 21, 2014

Before KING, GREGORY, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Sandra Barrett, Asheville, North Carolina; Robert Lynn

McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, LLP, Greensboro,
North Carolina; John Clark Fischer, RANDOLPH & FISCHER, WinstonSalem, North Carolina; Thomas Hilton Johnson, Jr., GRAY JOHNSON
BLACKMON LEE & LAWSON, LLP,
Greensboro, North Carolina, for
Appellants.
Lisa Blue Boggs, Stephen Thomas Inman, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee. ON BRIEF: Ripley Rand, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
In

this

multi-defendant

several assignments of error.

appeal,

we

are

faced

with

Four co-defendants -- Alton Benn,

Sean Darnell Jeffries, Robert Eugene Poole, and Kevin Gordon

Haith (collectively, Appellants) -- were tried by a jury and
convicted

of

conspiracy

to

distribute

crack

cocaine

and

unlawfully possess cocaine hydrochloride with the intent to make

crack cocaine.

Appellants Poole and Haith were also convicted

of related firearm charges.

sentenced

to

terms

of

Following trial, Appellants were

imprisonment

varying

from

114

to

440

months.
Appellants

claim

their

conspiracy

convictions

were

based on insufficient evidence; the testimony of an unindicted

co-defendant, who testified pursuant to an immunity agreement,
was unreliable; and the Governments expert witness was neither
timely noticed, nor qualified.

Appellants Benn, Jeffries, and

Haith challenge their sentences on various grounds, including

that

they

decision

were
Alleyne

in
v.

contravention
United

of

the

recent

States,

133

S.

Ct.

Supreme
2151

Court

(2013).

Appellant Haith also challenges his career offender and armed

career criminal designations as violative of our decision in
United States v. Davis, 720 F.3d 215 (4th Cir. 2013).
reasons that follow, we affirm.

For the

I.
A.
The facts underlying this appeal are presented in the
light most favorable to the prevailing party at trial -- the
Government.

See United States v. Lespier, 725 F.3d 437, 440 n.2

(4th Cir. 2013).

The Greensboro Police Department (GPD) began

an investigation into a purported crack cocaine conspiracy in

Greensboro,

North

Carolina,

in

2007.

The

conspiracy

was

believed to be run by a distribution organization known as the

Bundy

Boys.

GPD

Narcotics

Officer

R.L.

Alston

began

investigating the alleged leader of the Bundy Boys, Appellant

Benn (a.k.a. Bundy or B).
Appellant

Benn,

Leonard

Alston learned that, along with

Gary

Williams

(a.k.a.

G),

and

Appellants Poole (a.k.a. Pooh), Jeffries (a.k.a. Fuzz), and

Haith

(a.k.a.

Smoke)

were

involved

in

the

Bundy

Boys

distribution of crack cocaine between 2006 and 2010.

As part of his investigation, Officer Alston conducted
surveillance

at

Appellant

Benns

residence,

and

saw

other

members of the Bundy Boys coming and going on a regular basis.

On May 24, 2007, Officer Alston conducted a trash pull at the
residence and found a wrapper normally used to wrap kilograms of
cocaine.

After field-testing, it was revealed that the wrapper

contained Appellant Benns left palm print, and the residue on

the wrapper tested positive for powder cocaine.
5

On August 30,

2007, Officer Alston conducted another trash pull at the house,

and found a white powder substance inside a trash bag.
substance

also

field-tested

positive

for

cocaine.

That

Officer

Alston continued periodic surveillance of Appellant Benns house

from

2007-09.

searches,

and

During

this

sometimes

time,

arrests,

the

at

GPD

around

also
a

conducted

dozen

other

residences in Greensboro, each of which had some link to the

Bundy Boys.
1.
The Bundy Boys
At trial, both Tashee Mumford and Williams explained
how they came to know the Bundy Boys and the inner-workings of
their organization.
a.
Tashee Mumfords Testimony
Mumford testified that Appellant Haith introduced her
to Williams and Appellant Benn, and through those individuals,
she

met

Appellant

Jeffries.

She

described

Williams

Appellants Benn and Jeffries as the Bundy Boys.

and

She also

testified that Appellant Poole was with [Williams] and would

hold

the

drugs

sometimes,

that

is,

keep

[them]

safely,

stor[e] them in case . . . you need to go get some more or run

J.A. 1420-21. 1

out.

In addition, Appellant Poole would keep

[the drugs] at his house, or whatever location he was in, for

the next time somebody needs some.

Id. at 1421.

During her association with the Bundy Boys, Mumford

sold crack cocaine at a house on Bragg Street in Greensboro with
Appellant Haith, and those drugs were brought there by Appellant
Benn or Williams.

She said that after the drugs were sold, she

or Appellant Haith would give the money to Appellant Benn.

She

and Appellant Haith also sold crack from a house on Charlotte

Street.

Later,

Mumford

moved

away

from

Appellant

Haith

started selling drugs at an apartment on Waugh Street.

and
She

explained that at that time, Williams and Appellants Benn and

Jeffries were on the same team.

J.A. 1432.

Mumford described the structure of the Bundy Boys as

follows:
Bundy [Appellant Benn] would be first, or the head,
person and then you have G [Williams] under him. Then
you have, like, maybe Fuzz [Appellant Jeffries] under
G, and then you will have all other workers or the
people that was under them . . . who would run the
houses, and then you would have us, the workers, that
are in the house. So, basically, The Bundy Boys were
the head of the whole operation.
J.A. 1457.

Mumford explained that if Appellant Benn could not

bring

drugs,

them

Williams

would,

and

when

he

could

not,

Citations to the J.A. refer to the Joint Appendix filed

by the parties in this appeal.

Appellant Jeffries would.

would run a house.

She said sometimes Appellant Jeffries

Id. at 1458.

According to Mumford, after

Williams was arrested, as explained below, Appellant Jeffries

took over Williamss duties.
b.
Leonard Gary Williamss Testimony
Williams was arrested for selling crack cocaine with
the Bundy Boys in April 2009.

GPD officers raided his house on

Oak Street and found crack cocaine and a .380 handgun.

Williams

did not remain in jail long, however, because Appellant Benn

bonded him out.
lawyer.

Williams continued to sell drugs to pay for his

He sold crack until he was again arrested in February

2010 by Officer Alston.

After this arrest, he agreed to speak

to federal agents in exchange for immunity.

Williams
Connecticut

20

explained

years

that

previously,

Carolina together around 1996.

he
and

met
the

Appellant
two

moved

Benn
to

in

North

He said he met Appellant Haith

in North Carolina in 1996, and Appellants Jeffries and Poole in

North Carolina around 2004.

From 2006 to his arrest in 2010,

Williamss main source of income was selling crack cocaine.

He

and Appellant Benn would travel to purchase powder cocaine, and

afterwards, Appellant Benn would cook it into crack cocaine.
Williams testified that the crack cooked by Appellant
Benn would be sold at Pearson Street, Holt Street, McConnell
8

Road, Bragg Street, Charlotte Street, Winston Street, and Duke

Street in Greensboro.

He testified that Appellant Poole might

sell very little, but he would be the doorman sometime, and he

will either ride with me or Mr. Benn and hold the drugs while
they were delivered . . . [j]ust in case the police stopped, he
would be the one who [would] take the charge or either run with
it.

J.A. 206.
As to the organizational structure of the Bundy Boys,

Williams testified,
[W]hen I first came, I had to work my way up. I aint
just start becoming the one who delivered the drugs.
I had to work the window, watch out for the police. I
had to sell the crack cocaine, and then I move up into
the one that would help bag up the crack cocaine and
deliver it.
. . .
It was like Mr. Benn was the
president, I was the vice president, and everybody
else was like the workers.
. . .
Sometime [the
workers] would switch up from selling to watching the
window or the door. Thats about it.
J.A. 205.

Williams explained that he stopped being the vice

president sometime in 2008.

At that time, Mr. Benn and Mr.

Jeffries became more closer than me and Mr. Benn.

Id. at 247.

2.
Transporting Drugs/Money
According

to

Williams,

Appellant

Benn

made

powder

cocaine purchases in Asheboro, Winston-Salem, and Atlanta.

and

Appellant

Benn

made

four

trips

to

Asheboro;

and

he

He
and

Appellants Benn, Jeffries, and Poole made three to four trips to

Winston-Salem, each time to buy powder cocaine.

back

in

Greensboro,

they

would

cook

the

Once they were

powder

at

either

Appellant Benns, Appellant Jeffriess, or Williamss residence,

and it would be bagged for storage.

Many times, Williams would

deliver the drugs to Greensboro crack houses and collect the

money and bring it to Appellant Benn.

He explained that the

crack houses ran day and night, seven days a week.

Williams

testified

that

around

2007-08,

he

went

to

Atlanta three times to buy powder cocaine, and the first time,
he

went

with

Appellants

Benn,

Jeffries,

and

named Helen Grier; and two other individuals.

Poole;

worker

Their intention

was to bring back three kilograms of powder cocaine.

Williams,

Appellants Benn, Jeffries, and others contributed money to make

this purchase, but they only ended up with one good kilogram.
J.A. 208.

Thus, they returned to Atlanta, bought more powder

cocaine, sold it in Greensboro, and obtained the proper amount

to pay back those who had contributed money.
On one occasion in 2008, Williams did not make the
trip to Georgia, but Appellant Benn told him about it.
that

trip,

law

enforcement

stopped

the

vehicle

in

During
which

Appellants Benn, Jeffries, and Poole; Grier; and Barry Shamel

were traveling.

Williams explained,

They went to purchase 8 kilos of cocaine; and after

purchasing the 8 kilos of cocaine, . . . they was
followed by some police in pick-up trucks. It turned
10

into a high-speed chase and Mr. Benn got distant

enough from the police. . . . Shamel jumped out with
the black duffel bag with the 8 kilos of cocaine in it
and went and buried them . . . [t]hen after that, the
police closed in on Mr. Benn and Mr. Jeffries and Miss
Grier, and they took Mr. Benn to jail for questioning.
. . .
Poole got out [of the vehicle] a little bit
farther after [Shamel] got out[.]
J.A. 214-15.

Grier testified that when Appellant Poole jumped

out of the vehicle after Shamel, he carried a backpack full of

materials used to cook crack.

At Appellant Benns direction,

Williams wired $100 to him so that Shamel could get a hotel room
after

he

buried

the

drugs.

Once

everyone

returned

to

Greensboro, they took the eight kilograms of powder cocaine and

buried

it

near

Appellant

Benns

residence.

The

next

day,

Appellant Benn cooked the powder cocaine into crack cocaine.

Later

in

2008,

Appellants

Benn

and

Jeffries,

along

with a third man, made a trip to Texas to purchase two kilograms

of powder cocaine.

Appellant Benn called Williams and told him

he had been stopped by the police, who took their money as soon
as they crossed into Texas.
Orange

Police

Department

in

Major Wade Robinson of the City of

Texas

performed

search

vehicle and found $50,000 in cash in a black bag.

of

the

DEA Special

Agent Timothy Duriso testified that Appellant Jeffries claimed

the money was his, but he was unable to explain the source of
the cash.

Williams had earlier testified that the money was

going to be used to purchase two kilograms of powder cocaine.

11

In addition, GPD Detective Eric Goodykoontz testified

that

on

May

Appellant

20,

Benn

Greensboro.

2009,

on

police

English

stopped

Road,

near

vehicle
Phillips

Appellant Benn was with Appellant Poole.

driven

by

Avenue

in

Appellant

Poole was searched, and officers discovered scales and a glass

smoking device in his shirt pocket.

Upon further searching,

officers discovered that Appellant Poole was hiding 1/2 ounce,

or 14 grams, of crack cocaine in his buttocks.
B.
On

August

30,

2011,

Appellants

were

charged

superseding indictment, as follows:

Count One - All Appellants conspired with Williams and
others to distribute 280 grams or more of crack
cocaine, in violation of 21 U.S.C. 841(a)(1)
(Object One), and to unlawfully possess 5 kilograms
or more of a mixture containing a detectable amount of
cocaine hydrochloride with the intent to make crack
cocaine (Object Two), all in violation of 21 U.S.C.
846, 841(b)(1)(A).
Count Two - Appellant Haith possessed a handgun and
rifle in furtherance of a federal drug trafficking
crime, in violation of 18 U.S.C. 924(c)(1)(A)(i).
Count Three - Appellant Haith was a felon in
possession of a firearm, in violation of 18 U.S.C.
922(g)(1) and 924(a)(2).
Count Four - Appellant Jeffries possessed with the
intent to distribute 11.5 grams of crack cocaine, in
violation of 21 U.S.C. 841(a)(1) and (b)(1)(B).
Count Five - Appellant Jeffries possessed a 9mm semiautomatic handgun, a Smith and Wesson 10mm semiautomatic handgun, and a 12 gauge Street Sweeper
shotgun in furtherance of the drug trafficking crime
12

in

mentioned in Count Four, in violation of 18 U.S.C.

924(c)(1)(a)(i) and (c)(1)(B)(ii).
Appellants

proceeded

to

beginning on February 13, 2012.

trial,

with

jury

selection

The Governments case-in-chief

began on February 14, 2012, and continued over the course of

nine days, to February 27, 2012.

The Government rested, and

each Appellant moved for judgment of acquittal per Rule 29 of

the Federal Rules of Criminal Procedure.

The district court

granted Appellant Haiths motion to dismiss Object Two of Count

One

(the

cocaine

second

prong

hydrochloride

of

the

with

conspiracy

the

intent

count
to

--

possessing

manufacture

crack

cocaine), but denied the other aspects of Haiths motion and

denied

in

Jeffries,

their
and

entirety

Poole.

None

evidence in their defense.

the
of

motions
the

of

Appellants

Appellants

Benn,

presented

any

On March 5, 2012, the jury found

Appellants guilty of the charges remaining against each of them,

as follows:
Count One, Object One: The jury found that Appellants
Benn, Jeffries, and Haith conspired to distribute 280
grams or more of crack cocaine, while finding that
Appellant Poole conspired to distribute more than 28
but less than 280 grams.
Count One, Object Two: The jury found that Appellant
Benn had conspired to possess five kilograms or more
of
cocaine
hydrochloride
with
the
intent
to
manufacture crack cocaine, while Jeffries possessed
500 grams but less than five kilograms of cocaine
hydrochloride, and Poole possessed less than 500 grams
of
cocaine
hydrochloride
with
the
intent
to
manufacture crack.
13

Count Three: The jury found Appellant Haith guilty of

being a felon in possession of a firearm, in violation
of 18 U.S.C. 922(g)(1) and 924(a)(2).
Count Four:
The jury found Appellant Jeffries
possessed with the intent to distribute 11.5 grams of
crack cocaine, in violation of 21 U.S.C. 841(a)(1)
and (b)(1)(B).
Count Five The jury found that Appellant Jeffries
possessed a 9mm semi-automatic handgun, a Smith and
Wesson 10mm semi-automatic handgun, and a 12 gauge
Street Sweeper shotgun in furtherance of the drug
trafficking
crime
mentioned
in
Count
Four,
in
violation
of
18
U.S.C.

924(c)(1)(a)(i)
and
(c)(1)(B)(ii). 2
The district court held separate sentencing hearings
for each defendant:
Appellant Benn Benns base offense level was 38,
which is the level for offenses involving 8.4
kilograms or more of cocaine base. See United States
Sentencing Guidelines (U.S.S.G. or the Guidelines)
2D1.1(a)(5), (c)(1) (2011). After enhancements for
possessing a firearm, maintaining a premises for the
purpose of making and distributing drugs, committing
the offense as a pattern of conduct used as his
livelihood, and being an organizer or leader of the
conspiracy, his offense level was 48, which was
reduced to 43 pursuant to Chapter 5, part A of the
Guidelines.
With a criminal history category of III,
his Guidelines range was life in prison.
The
statutory provision was 10 years to life.
The
district court varied downward, and assigned a term of
imprisonment of 440 months.

The jury found that the Street Sweeper was a destructive

device pursuant to 18 U.S.C. 924(c)(1)(B)(ii), but also that
Appellant Jeffries did not know the characteristics of the
Street Sweeper that caused it to be a destructive device.
J.A. 2012.

14

Appellant Jeffries Jeffriess base offense level was

38, for an offense involving 8.4 kilograms or more of
cocaine base.
See U.S.S.G. 2D1.1(a)(5), (c)(1)
(2011).
He received two enhancements, which he does
not dispute, plus one 3-level increase for being a
manager or supervisor (but not an organizer or leader)
of the conspiracy, which he disputes in this appeal.
See U.S.S.G. 3B1.1(b) (2011).
These adjustments
took his offense level to 45, which was reduced to 43
pursuant to Chapter 5, part A of the Sentencing
Guidelines.
With a criminal history category of II,
his Guideline range was life in prison as to Count
One, and 60 months as to Count Five, to be served
consecutively. The district court varied downward and
imposed a sentence of 300 months on Count One; 240
months on Count Four, to be served concurrently; and
60 months on Count Five, to be served consecutively,
for a total of 360 months in prison.
Appellant Haith - Haiths base offense level was 38,
for an offense involving 8.4 kilograms or more of
cocaine base.
See U.S.S.G. 2D1.1(a)(5), (c)(1)
(2011).
He
received
a
2-level
increase
for
maintaining
a
premises
for
the
purpose
of
manufacturing and distributing drugs, and a 3-level
increase for being a manager or supervisor (but not an
organizer or leader) of the conspiracy.
This brought
his offense level to 43.
Haith was designated as a
career offender and armed career criminal.
His
Guideline range as to Counts One and Three was life in
prison, and for Count Two, it was 60 months, to run
consecutively.
The district court sentenced him to
downwardly variant 309-month concurrent sentences on
Counts One and Three, and a 60-month consecutive
sentence on Count Two, for a total of 369 months in
prison.
Appellant
Poole
The
district
court
sentenced
Appellant Poole to 114 months in prison. Poole is not
challenging his sentence in this appeal.
Appellants

filed

appeals were consolidated.

timely

notices

of

appeal,

and

the

We held oral argument on Friday,

April 11, 2014, in Charleston, South Carolina.

15

II.
All Appellants challenge their conspiracy convictions
as unsupported by sufficient evidence; and Appellants Benn and
Jeffries contend that the testimony of Williams was inherently
unreliable.
A

Appellants Br. 2. 3
jury

verdict

must

be

sustained

if,

viewing

the

evidence in the light most favorable to the prosecution, the

verdict is supported by substantial evidence.

United States v.

Smith, 451 F.3d 209, 216 (4th Cir. 2006) (internal quotation
marks omitted).

Substantial evidence is defined as evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendants guilt beyond
a reasonable doubt.

Id. (internal quotation marks omitted).

Reversal for insufficient evidence is reserved for the rare

case where the prosecutions failure is clear.

United States

v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (citing Burks v.
United States, 437 U.S. 1, 17 (1978)).
To support a conspiracy conviction, the jury must have
believed
agreement

beyond
between

reasonable
the

doubt

defendant

and

that
one

(1)
or

there

more

was

an

persons

to

possess with the intent to distribute cocaine base (Count One,

Object
3

One),

or

to

possess

hydrochloride

with

the

intent

Appellants filed a joint opening brief in this case.

16

to

manufacture
defendant

cocaine
knew

base

of

the

(Count

One,

conspiracy;

Object
and

(3)

Two);

(2)

the

the

defendant

knowingly and voluntarily became part of the conspiracy.

See

United States v. Williams, 632 F.3d 129, 135 (4th Cir. 2011).
After a conspiracy is shown to exist, the evidence need only
establish

slight

connection

between

conspiracy to support conviction.

F.3d

125,

omitted).

139

(4th

Cir.

the

defendant

and

the

United States v. Kellam, 568

2009)

(internal

quotation

marks

Indeed, [e]vidence of a buy-sell transaction coupled

with a substantial quantity of drugs, would support a reasonable

inference

that

the

parties

were

coconspirators,

as

can

evidence of continuing relationships and repeated transactions

. . ., especially when coupled with substantial quantities of
drugs.

United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008) (internal quotation marks omitted) (alteration omitted).

Having
each

of

the

independently

Appellants

reviewed

arguments

on

the

record,

this

point.

we

reject

We

find

sufficient evidence from numerous witnesses that each Appellant

made an agreement with at least one of the others to commit the
charged crimes, that each Appellant knew of the conspiracy, and
that each Appellant knowingly and voluntarily became part of the
conspiracy.
In

addition,

to

the

extent

Appellants

Benn

and

Jeffries suggest that Williamss testimony obtained pursuant to

17

an immunity agreement is per se questionable, they are asking

this court to make a credibility determination on appeal, but
credibility determinations are within the sole province of the
jury and are not susceptible to judicial review.
v.

Palacios,

677

F.3d

234,

248

(4th

Cir.

United States

2012)

(internal

quotation marks omitted); see also United States v. Smith, 30

F.3d 568, 571-72 (4th Cir. 1994) (rejecting a similar claim that
the governments evidence was somehow tainted because it came
from

persons

who

were

granted

immunity

and

signed

plea

agreements in exchange for substantial assistance).

For

these

reasons,

we

conclude

that

Appellants

conspiracy convictions were supported by substantial evidence.

III.
Appellants Benn, Jeffries, and Haith challenge their
sentences for various reasons.

We discuss each of Appellants

arguments in turn.
A.
Appellant Benn
As

set

forth

above,

Appellant

Benns

base

offense

level was 38, which is the level for offenses involving 8.4
kilograms or more of cocaine base.
(c)(1) (2011).

See U.S.S.G. 2D1.1(a)(5),

Appellant Benn contends that, although the jury

found him guilty of conspiring to distribute more than 280 grams

of crack and possessing more than 5 kilograms of cocaine powder,
18

and the district court sentenced Appellant Benn based on more

than 8.4 (specifically, 21.46) kilograms of crack, in all its
searches

and

seizures,

authorities

had

confiscated

only

91

verifiable grams of [crack cocaine], and not all of that could

clearly be attributed to the alleged conspiracy.

Appellants

Br. 20.
The district courts determination of drug quantities
for

sentencing

purposes

is

Kellam, 568 F.3d at 147.

reviewed

for

clear

error.

See

At sentencing, the government must

prove drug quantity by a preponderance of the evidence.

See id.

A district court may impose a sentence based on a drug quantity

determination greater than that found by the jury so long as the
sentence does not exceed the statutory maximum of the convicted
offense and the district courts calculation is supported by
sufficient evidence.
(4th

Cir.

2010)

defendants

Base

United States v. Young, 609 F.3d 348, 357

(internal
Offense

quotation
Level

marks

under

omitted).

the

Guidelines

is

determined by the amount of drugs reasonably foreseeable to him

within the scope of his unlawful agreement.

United States v.

Lamarr, 75 F.3d 964, 972 (4th Cir. 1996) (internal quotation

marks omitted).
The

trial

evidence

and

the

record

provide

ample

support for the district courts drug quantity finding of 21.46

kilograms.

The

court

first

considered
19

the

trips

made

to

Atlanta, Texas, and other locations in North Carolina and used

the alleged quantities of powder cocaine obtained on those trips
and converted them to the crack equivalent, since the evidence
at trial suggested the powder was to be used to make crack.

The

court concluded, from the Atlanta trips of 11 kilos and then 6

kilos from Winston-Salem, five from Asheboro, that should be a
total of 22 kilos.

. . .

Adding [the 2 kilos sought on the

Texas trip], I have a total of 24 kilos of powder cocaine.

J.A.

2119.

The

court

then

explained,

[t]he

evidence

was

consistent throughout the trial that the only purpose for the
powder cocaine was to convert it into crack cocaine for the
purposes of resale, so based on the conversion ratio of .894,
that would convert . . . [to] 21.46 kilos of crack cocaine.
Id.
Alternatively, the court explained,
[I]f you look at the sales of cocaine from the various
houses, a conservative estimate, . . . is, 10 grams a
day for each house, and the testimony was the houses
ran 24 hours a day, seven days a week. That would be
3.65 kilos over a three year period of 2005 to 2007.
Also, the testimony that I find credible was, that
[Jacqueline Adams, a worker] also collected packages
from Mr. Benn and five gram packs, 1 gram in each
broken out pack, four in a bundle, so 5 grams times
four is 20 grams. That would be 1.6 kilos.
Further, according to Mr. [Ronald] Duffs testimony,
and I find his testimony credible, 15 grams a day from
the Brag[g Street] house, would come to 3.6 kilos for
the eight to nine month period that he testified to.

20

That alone, is 8.85 kilos of crack cocaine, which is

above the 8.4 kilograms of record level 38 . . . .
In any event, Ms. Grier also testified to additional
sales, which in a good week would be 40 grams, which
it would be an additional up to 2 kilos. Ms. Mumford
also had sales for three and a half years, even if she
is selling 1 gram. As the Government indicated, that
would be 1.2 kilos.
All of that would be well above
the 8.4 kilograms, so on either way of looking at the
evidence, a minimum of 8.4 kilograms of crack cocaine
or cocaine base is attributable, I believe, to Mr.
Benn in this case.
J.A. 2120-21.
The district court did not clearly err in determining
that these amounts were reasonably foreseeable to [Appellant
Benn] within the scope of the conspiracy.
972.
life

Lamarr, 75 F.3d at

In any event, the district court varied downward from the

sentence

prison.

For

and

sentenced

these

reasons,

Appellant

Benn

Appellant

to

Benns

440

months

drug

in

quantity

argument fails.
B.
Appellant Jeffries
Appellant

Jeffries

raises

challenges

both

to

the

quantity of drugs attributed to him for sentencing purposes, and

to

the

sentencing

enhancement

he

manager/supervisor of the conspiracy.

21

received

for

being

1.
Drug Quantities
Appellant Jeffries contends that the district court
assigned drug quantities to him that had been attributed to Mr.
Benn and his independent operations and [t]he totality of the
evidence does not show a direct connection between Mr. Jeffries
and the drug activities of Mr. Benn at the time Jeffries was
seen.

Appellants Br. 41, 42.

He also contends the district

court erred in assigning the $50,000 that Appellant Jeffries

claimed to be his to a drug quantity because [t]he cash itself
was

not

determined

activity.

to

be

related

to

any

particular

drug

Id. at 41.
The district court assigned to Appellant Jeffries 19

kilograms of powder cocaine, based on three trips to Atlanta (11

kilograms
total),

total),

and

kilograms).
to

16.9

three

trip

to

trips

to

Winston-Salem

Texas

($50,000

cash

(6

kilograms

converted

to

Based on the conversion rate of .894, this equates

kilograms

of

crack

cocaine.

Therefore,

Appellant

Jeffriess base offense level was 38, for an offense involving

8.4

kilograms

or

more

of

cocaine

base.

See

U.S.S.G.

2D1.1(a)(5), (c)(1) (2011).

The information upon which the district court based
the drug quantity calculation with respect to Appellant Jeffries
came from the testimony of co-conspirators at trial.
22

This was

proper.

See United States v. Slade, 631 F.3d 185, 188 (4th Cir.

2011) ([I]t is within the discretion of the district court to

credit

the

testimony

of

witnesses

who

defendants] involvement in the drug trade.).

discussed

[the

In addition, the

district court found that Appellant Jeffries not only knew that
the

trips

to

Georgia,

Winston-Salem,

and

Texas

were

to

buy

powder cocaine to cook into crack, but that Appellant Jeffries

also contributed money to at least some of these buys.

Further,

[w]here police seize cash . . . from a defendant, the cash can

be converted to a quantity of drugs consistent with the normal
selling price for the drugs.

United States v. McGee, 736 F.3d

263, 271 (4th Cir. 2013).

Having reviewed the record, we conclude the district
courts findings were not clearly erroneous.

Thus, the drug

quantity assigned to Jeffries was proper.

See Lamarr, 75 F.3d

at

conspiracy

972

(base

offense

level

in

drug

case

is

determined by the amount of drugs reasonably foreseeable . . .

within the scope of [the] unlawful agreement).
2.
Sentencing Enhancement
The United States Sentencing Guidelines allow for a
three-level upward adjustment to a defendants offense level if
the defendant was a manager or supervisor (but not an organizer
or

leader)

and

the

criminal

activity
23

involved

five

or

more

participants or was otherwise extensive.

(2011).

U.S.S.G. 3B1.1(b)

As we have explained,

[t]he adjustment is warranted when a defendant was a

manager
or
supervisor
of
one
or
more
other
participants.
[U.S.S.G. 3B1.1(b)] cmt. n.2.
Therefore, an adjustment under 3B1.1 is proper
only if it was demonstrated that the defendant was an
organizer, leader, manager or supervisor of people.
United States v. Cameron, 573 F.3d 179, 185 (4th Cir.
2009) (quoting United States v. Sayles, 296 F.3d 219,
226
(4th
Cir.
2002))
(emphasis
in
original)
(alterations
omitted).
The
burden
is
on
the
government to prove by a preponderance of the evidence
that the sentencing enhancement should be applied.
United States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013)
(footnote

omitted).

seven factors

to

Comment

consider

in

to

U.S.S.G.

making

the

3B1.1

provides

determination

as

to

whether the enhancement applies to a particular defendant:

1)

the

of

exercise

participation

of

decision

in

the

making

authority,

commission

of

the

2)

the

offense,

nature
3)

the

recruitment of accomplices, 4) the claimed right to a larger

share of the fruits of the crime, 5) the degree of participation
in planning or organizing the offense, 6) the nature and scope
of

the

illegal

activity,

and

7)

the

degree

of

control

and

authority exercised over others.

Appellant Jeffries contends that this enhancement was
improperly

applied

to

him

because

the

record

evidence

is

insufficient to show that he actually managed or supervised

persons involved in the conspiracy.

24

Appellants Br. 38.

In

reviewing

this

claim,

[i]f

the

issue

turns

primarily

on

factual determination, [we] should apply the clearly erroneous

standard.

Steffen, 741 F.3d at 414.

But, if the issue turns

primarily on the legal interpretation of a guideline term, the

standard

moves

omitted).

closer

to

de

novo

review.

Id.

(alterations

However, [w]e consistently have held that a district

courts determination that a defendant held a leadership role in

criminal

activity

is

essentially

factual

reviewed on appeal for clear error.

marks omitted).

and,

therefore,

is

Id. (internal quotation

At sentencing, the Government has the burden of

proving that the enhancement applies by a preponderance of the

evidence.

See id.
In Slade, we reversed the district courts application

of the enhancement due to the absence of any evidence that the

defendant managed or supervised at least one other participant
in the offense.
that

Slade

631 F.3d at 191.

supplied

drugs

to

Although the evidence showed

other

co-conspirators,

co-

conspirators sold drugs for Slade, and a co-conspirator drove

Slade

to

evidence
other

different
that

In
where

Slade

participants

activities.

the

places

to

actively

in

the

deliver

drugs,

exercised

some

operation

or

there

was

authority

actively

managed

no
over
its

Id. at 190.
contrast,
defendant

we

upheld

made

the

enhancement

decisions
25

that

in

Steffen,

reflected

his

management or supervision of the criminal activities of at least

one other person, i.e., using his position as a state highway
patrolman

to

stopping

prevent

any

other

co-conspirators

law

enforcement

vehicle

agency

containing

drugs,

from
and

transferring his electric bill to the same co-conspirators name

in order to avoid being implicated in the conspiracy and to
deflect blame to the co-conspirator.

741 F.3d at 416; see also

United States v. Llamas, 599 F.3d 381, 38990 (4th Cir. 2010)
(affirming U.S.S.G. 3B1.1(b) enhancement where the defendant
exercised supervisory responsibility over the activities of a
call center in furtherance of a fraud scheme by, inter alia,
enforcing the centers rules, punishing non-compliant operators,
and coordinating the operators activities); Kellam, 568 F.3d at
14748

(affirming

defendant

U.S.S.G.

controlled

the

3B1.1(b)

drug

buys

directed the terms of payment);

enhancement
of

where

the

co-conspirators

and

Bartley, 230 F.3d at 67374

(affirming U.S.S.G. 3B1.1(b) enhancement where the defendant

directed the activities of street-level drug dealers and advised
them on drug sales techniques, set prices and payment terms, and
directed the mailing and transport of drugs); United States v.
Brooks,

957

3B1.1(b)

F.2d

1138,

enhancement

1152
where

(4th
the

Cir.

1992)

defendant,

(affirming

inter

alia,

USSG
paid

employees of the drug operation and effectively ran the [drug]

operation while her husband was ill).
26

In

the

instant

matter,

there

were

several

facts

adduced at trial and relied upon by the district court that

support

the

enhancement.

The

court

first

found

that

the

conspiracy involved five or more participants, naming Williams,

Adams,

and

Appellants

Jeffries,

Haith,

and

Benn.

It

also

concluded the conspiracy was extensive, covering a period of

four years, multiple trips across state lines, and distribution
at around a dozen crack houses.
As

to

Appellant

Jeffries

specifically,

Mumford

testified that after Williams was in jail, Jeffries would come

around and start doing what [Williams] was doing, [which was]
[m]aking sure the rent got paid or bringing us the drugs or
receiving the money after we sell the drugs.

J.A. 1458.

She

also testified that Appellant Jeffries would sometimes run a

house and that she sold sometimes for him.

Id.

In addition,

Appellant Jeffries straightened [] out a bad deal for Ronald

Duff,

when

he

attempted

to

buy

drugs

at

house

Appellant

Jeffries was allegedly running, and Duff never had a problem

there again.
that

Id. at 826-27.

Appellant

Atlanta,
Appellant

and

Jeffries

that

Benn,

on

was

one

Appellant

The district court further found

present

trip,
Poole,

he
and

on

all

waited
Shamel

of
at

the

trips

to

the

hotel

for

after

Poole

and

Shamel jumped from the vehicle to flee law enforcement.

It also

found, Jeffries took over [Williamss] role for a period of

27

time . . . as the second in command to help Mr. Benn run his

enterprise.
manage

So, in that capacity, he was managing - helping to

the

delivery

of

collection of money.

cocaine

to

the

crack

houses

and

the

J.A. 2285.

This case is more akin to Steffen than it is to Slade;

the evidence demonstrates that Appellant Jeffries stepped in as
second in command in the Bundy Boys hierarchy, ran a crack house
where he had the power to fix bad deals, and directed at least
one worker in the conspiracy to sell drugs.
evidence,

the

district

court

did

not

err

Based on this
in

applying

the

sentencing enhancement.
C.
Appellants Benn, Jeffries, and Haith
Alleyne v. United States
In

supplemental

and

reply

briefs,

Appellants

Benn,

Jeffries, and Haith contend that the drug quantities attributed

to them in the PSR and found by the district court were not
submitted to a jury and . . . proven beyond a reasonable doubt,
in contravention of Alleyne v. United States, 133 S. Ct. 2151,
2155 (2013).

Appellant Haiths Supp. Br. 3; see also Appellants

Benn and Jeffriess Rep. Br. 2, 6.

Because this issue was not

raised below, we review it for plain error.

See United States

v. Olano, 507 U.S. 725, 732 (1993); Henderson v. United States,

133 S. Ct. 1121, 1126 (2013); see also Fed. R. Crim. P. 52(b)
28

(A

plain

considered

error
even

attention.).

that

affects

though

it

was

substantial
not

brought

rights

may

to

courts

the

be

Rule 52(b) authorizes an appeals court to correct

a forfeited error only if (1) there is an error, (2) the error

is

plain,

and

(3)
S.

the

Henderson,

133

Ct.

alteration

omitted).

error

affects

substantial

1126

(internal

quotation

marks

even

the

at
An

error

is

plain

if

rights.
and

trial

judges decision was plainly correct at the time when it was

made but subsequently becomes incorrect based on a change in
law.

Id. at 1127 (emphasis in original).

Apprendi v. New Jersey held, [o]ther than the fact of

a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.
490

(2000).

Alleyne

went

step

530 U.S. 466,

further,

declaring,

[m]andatory minimum sentences increase the penalty for a crime.

It follows, then, that any fact that increases the mandatory
minimum is an element that must be submitted to the jury.
133 S. Ct. at 2155.
Alleyne has no application to Appellants sentences in
this case.

The district courts drug quantity determinations at

sentencing

did

minimum
advisory

not

sentences,
Guidelines

increase
but

Appellants

rather,

ranges

were

(from
29

used

which,

statutory
to
in

mandatory

determine
any

event,

their
the

district court varied downward).

Alleyne itself recognized that

broad sentencing discretion, informed by judicial factfinding,

does not violate the Sixth Amendment.

Id. at 2163; see also

id. (explaining that its decision is wholly consistent with the

broad discretion of judges to select a sentence within the range
authorized by law); United States v. Ramirez-Negron, --- F.3d
----,

2014

WL

1856762

(1st

Cir.

May

9,

2014)

([F]actual

findings made for purposes of applying the Guidelines, which

influence

the

sentencing

judges

discretion

in

imposing

an

advisory Guidelines sentence and do not result in imposition of

a

mandatory

Alleyne.);
1856679

minimum
United

(3d

Cir.

sentence,

States
May

9,

v.

do

not

Smith,

2014)

violate

---

(Alleyne

F.3d
did

the

rule

in

----,

2014

WL

not

curtail

sentencing courts ability to find facts relevant in selecting a

sentence within the prescribed statutory range.); United States
v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014) (finding Alleyne
had no application to fact-finding resulting in an increased
Guidelines sentence, explaining, Alleyne dealt with judge-found
facts

that

statute,

raised

not

the

mandatory

judge-found

facts

minimum
that

sentence

trigger

an

under

increased

guidelines range); United States v. Claybrooks, 729 F.3d 699,

708 (7th Cir. 2013) (citing Alleyne and explaining, [a]lthough
judicially determined facts are no longer relevant to deciding
the

applicable

mandatory

minimum,
30

district

court

should

continue

to

calculate

make

whatever

defendants

factual

advisory

findings

Guidelines

are

needed

range);

to

United

States v. Booker, 543 U.S. 220, 233 (2005) ([W]hen a trial

judge exercises his discretion to select a specific sentence
within a defined range, the defendant has no right to a jury
determination of the facts that the judge deems relevant.). 4
Thus there is no Alleyne error in the district courts
determination of Appellants drug quantities at sentencing.
D.
Appellant Haith
United States v. Davis

and

Appellant

Haith

career

criminal

armed

also

challenges

designations

his

as

career

violative

offender
of

this

courts decision in United States v. Davis, 720 F.3d 215 (4th

Cir. 2013).
1.
Davis

held,

consolidated

sentence

under

North

Carolina law is a single sentence for purposes of the career

offender

enhancement.

See
57798 (4th
facts are
applicable
calculate
within the

720

F.3d

at

216.

Indeed,

two

of

also United States v. Holder, No. 13-4269, 2014 WL

Cir. Jan. 8, 2014) ([A]lthough judicially determined
no longer relevant after Alleyne to deciding the
mandatory minimum, the factual findings needed to
a defendants advisory Guidelines range are still
district courts province.).

31

Appellant

Haiths

previous

sentences

were

consolidated

for

judgment in North Carolina, and the district court counted them

separately in determining whether Haith was a career offender.
Because this issue was not raised at sentencing, we
review it for plain error.

See Henderson, 133 S. Ct. at 1127.

Even assuming plain error existed here, the error did not affect
Haiths substantial rights.

Haith was designated as a career

offender under U.S.S.G. 4B1.1, which provides:

(a) A defendant is a career offender if (1) the
defendant was at least eighteen years old at the time
the
defendant
committed
the
instant
offense
of
conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
U.S.S.G. 4B1.1(a).
listed

three

above.

previous

They

97CRS46969

The PSR, which the district court adopted,

were

(felony

offenses

97CRS54403
indecent

as

satisfying

(felony

liberties

subsection

common
with

law
a

97CRS46970 (felony indecent liberties with a child).

two were consolidated for judgment.

(3)

robbery);

child);

and

The latter

Appellant Haith is correct

that, after Davis, the consolidated judgment would count as one

sentence for purposes of the career offender enhancement.
even
would

if

the

still

two
have

offenses
at

least

were
two

32

consolidated,
prior

felony

Appellant

But
Haith

convictions

of

crimes of violence, and would have still satisfied the career

offender requirements. 5
2.
Appellant Haith also challenges his designation as an
armed

career

offense

criminal,

under

18

that

U.S.C.

is,

defendant

922(g)

who

has

convicted
three

of

an

previous

convictions by any court [for a crime punishable by imprisonment

for a term exceeding one year] for a violent felony or a serious
drug offense, or both, committed on occasions different from one
another.

18

U.S.C.

924(e);

U.S.S.G.

4B1.4(a).

His

argument is based on Davis -- that is, his consolidated judgment

should count as only one offense.

Davis, however, does not

apply to the armed career criminal context.

In his supplemental brief, Appellant Haith also argues

that the North Carolina felony indecent liberties offenses were
not crimes of violence.
This is an argument that could have
been raised in Appellant Haiths opening brief but was not;
therefore, it is waived. See United States v. Hudson, 673 F.3d
263, 268 (4th Cir. 2012); United States v. Leeson, 453 F.3d 631,
638 n.4 (4th Cir. 2006) (Because Leeson did not present his
argument based upon Crawford in the argument section of his
opening brief, and Crawford was readily available at the time
Leeson filed his opening brief, Leesons argument based upon
Crawford is waived.); see also Fed. R. App. P. 28(a) (The
appellants brief must contain . . . the argument, which must
contain . . . appellants contentions and the reasons for
them[.]).
Furthermore,
when
Appellant
Haith
requested
supplemental briefing, he did so only to address Alleyne and
Davis. See United States v. Benn, No. 12-4522, ECF No. 95 (4th
Cir. filed June 26, 2013).

33

3.
Finally,

even

assuming

error

in

both

the

career

offender and armed career criminal context, Appellant Haiths

offense level would not change because it was already at level
43 before the proposed enhancements about which Appellant Haith
complains, and the Guidelines state, [a]n offense level of more
than 43 is to be treated as an offense level of 43.
Ch. 5, Pt. A n.2 (emphasis supplied).
an

offense

level

of

43,

points, is life in prison.

U.S.S.G.

The Guidelines range for

regardless

of

the

criminal

history

Thus, any potential error here would

not affect Appellant Haiths substantial rights.

See Henderson,

133 S. Ct. at 1126.

IV.
Lastly, we consider arguments by Appellants Jeffries
and Haith that the expert witness used by the Government, GPD
Corporal

Jon

Marsh,

was

erroneously

admitted

and

erroneously

qualified as an impartial expert witness.

Appellants claim that Corporal Marshs testimony was
prejudicial to the defendant in that it allowed bolstering of
testimony

and

conspiracy.

falsely

supported

Appellants Br. 43.

evidence

of

single

They also point out that

Corporal Marsh came from the same investigative body that was
involved in the prosecution of [Appellants] and thus, the court
gave

credence

that

the

Greensboro
34

Police

Department

was

employing

highly

qualified

officers

and

experts

in

this

investigation, even though Mr. Marsh was not involved in any

part of the particular investigation.
We

review

district

Id. at 44.

courts

admission

witness testimony for abuse of discretion.

Hopkins, 310 F.3d 145, 151 (4th Cir. 2002).
discretion

if

its

decision

is

guided

of

expert

See United States v.

A court abuses its
by

erroneous

legal

principles or rests upon a clearly erroneous factual finding.

United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).
A.
At trial, Corporal Marsh testified with regard to drug
distribution and firearms.

After opining as to his education

and extensive training with regard to narcotics investigations, 6

Corporal Marsh testified about how crack cocaine is normally
6

Corporal Marsh was an eighteen-year veteran with the GPD,

having worked thirteen years as a detective in vice and
narcotics. He also worked six months on a highway interdiction
team and two years in the tactical division working street
narcotics.
He was a sworn task force officer with the DEA for
six years. During his eighteen year career, Corporal Marsh had
worked 6,000-8,000 narcotics cases, approximately half of which
involved cocaine. He participated in at least 300-400 search
warrants (conservatively) and of those, about sixty percent
involved cocaine.
Corporal Marsh graduated from University of
North Carolina at Greensboro with a bachelors degree in
political science. He attended the Greensboro Police Academy
where he received 40 hours of training in narcotics and since
then continued his training, having received over 680 additional
hours of training related to narcotics investigations.
He
further received training through the DEA when he became a task
force officer.

35

bagged up, how it is cut, the materials used to cut and package
it, how much it is usually worth, and how crack houses normally
operate.

Pertinent to Appellants Jeffries and Haith, Corporal

Marsh testified about why . . . crack dealers have firearms.

J.A. 1389.

Corporal Marsh explained,

Most of the time, in my experience, what I have seen

is [crack dealers have firearms for] protection for
themselves and for the product that they are selling
and their money . . . .
[They also have firearms] a
lot as boasting, trying to basically ward off getting
rob[bed]. Ive heard -- you know -- if it looks scary
or if they feel -- drug dealers think that they can
show a gun or intimidate people who are buying from
them who may be [an]other [seller].
[T]hey want to
ward off the fact of an attempted robbery, boast about
it, show them I got a gun. I am not going to be taken
like that. I am going to protect myself at any means.
Id. at 1390-91.

Corporal Marsh also testified about the types

of firearms he typically sees when crack dealers are trying to

protect
other

themselves,
concealable

i.e.,

handguns,

weapons,

and

semi-automatic

sometimes

handguns,

shotguns;

and

the

places he typically finds them, i.e., in a closet, on the table,

on the mantel, next to a door, underneath a couch.
Appellant

Jeffries

filed

motion

for

expert

credentials on February 7, 2012, one week before trial.

The

Government filed its expert witness notification for Corporal

Marsh on February 16, 2012, three days after jury selection and
two

days

after

trial

testimony

began.

Even

then,

Appellant

Jeffries claims he only received a curriculum vitae, as well as

36

hand-written notes from Detective Marsh compiling his training

over the years.

Appellants Br. 43.

On February 20, 2012, Appellant Haith filed a motion

to exclude Corporal Marsh, claiming that the evidence sought to
be presented was not reliable (under Rule of Evidence 702), and
was

more

403).

prejudicial

than

probative

(under

Rule

of

Evidence

The motion was made only on behalf of Appellant Haith,

and did not mention the timeliness of the notice of the expert
testimony of Corporal Marsh; however, on the morning of February
23, 2012, Appellant Jeffriess counsel addressed the timeliness
of the motion, stating, I . . . object to the timeliness of the
[notice] for the record.

The notice was given on [February]

16th after motions had been filed requesting reports from expert
witnesses,
trial.

which

were

filed

timely

before

the

beginning

of

J.A. 1371.
The district court ruled that the testimony would be

allowed

with

testimony.
district

proper
J.A.

court

foundation

17.

explained,

As
I

certainly be prepared for it.

to anybody.

to

laid

the

think

for

each

timeliness
folks

have

aspect

argument,
had

time

of
the
to

So it is not coming as any shock

It is also the kind of testimony that, for those of

us who deal with it on a daily basis in connection with these

types of cases, is certainly anticipated; that is, there is very

37

little of this that is new or novel to anybody.

Id. at 1375-

76.
B.
We

are

troubled

about

the

way

in

which

the

expert

testimony of Corporal Marsh was introduced and utilized by the

Government.

At oral argument, the Government stated that it

certified Corporal Marsh as an expert because it wanted to err

on the side of caution, even though Corporal Marshs testimony
wasnt the kind of information that we typically consider an
expert opinion. Oral Argument at 50:40-51:00, United States v.
Benn,

No.

12-4255

(April

11,

2014),

available

at

http://www.ca4.uscourts.gov/oral-argument/listen-to-oralarguments.

The

Government

reiterated

that

in

the

Middle

District of North Carolina, we dont typically file the notice

of

expert

opinion

[when

police

officers

connection between guns and drugs.]

as

lay

opinion

assertion,

in

testimony.
this

case,

Id.
the

testify

about

the

We ordinarily bring it in
at

52:20-28.

Government

not

Despite
only

this

sought

to

certify Corporal Marsh as an expert, but did so three days after

trial began, and more than a week after Appellants requested
expert disclosures.
caution.

This is far from err[ing] on the side of

In fact, doing so gives the impression of bestowing

the courts imprimatur on what -- the Government now argues -is essentially lay witness testimony.
38

Furthermore, this and other courts have appropriately

excluded

expert

witness

testimony

based

on

untimely

notice.

See, e.g., United States v. Harris, 995 F.2d 532, 536 n.4 (4th
Cir. 1993) ([D]efense counsels advice and presentation to the
court

on

the

first

day

of

trial

hardly

gave

the

government

adequate notice of his intention to use an expert witness.);

United States v. Curry, 977 F.2d 1042, 1052 (7th Cir. 1992)
(notice of the proposed proffer of expert testimony given four
days before trial was prejudicial to the government and would
have justified its exclusion); United States v. Dowling, 855
F.2d 114, 118 (3d Cir. 1988) (notice of the proposed proffer of
expert testimony given five days before trial was considered
prejudicial to the government), affd on other grounds, 493 U.S.
342, 354 (1990); see also Wilkins v. Montgomery, --- F.3d ----,
2014 WL 1759083 (4th Cir. May 5, 2014) (in a civil case, finding
no abuse of discretion in district courts exclusion of expert
testimony where disclosure was made after the agreed-upon expert
disclosure

date,

after

discovery

was

closed,

after

Appellee

filed a motion for summary judgment).

Although

we

have

misgivings

about

the

Governments

actions regarding this matter, we find no abuse of discretion on

the part of the district court.

For one thing, it does not

appear that Appellants were prejudiced by the late notice.

See

United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir.

39

1997) (holding that a defendant must demonstrate prejudice to

substantial

rights

to

rules). 7

discovery

justify
In

the

reversal
week

for

between

violations

the

of

Governments

disclosure and Corporal Marshs testimony, Appellants did not

ask for a continuance to seek and submit their own expert, and
both Appellant Jeffriess and Appellant Haiths attorneys crossexamined Corporal Marsh at trial.
defense

counsel

Corporal

Marshs

firmly

developed

testimony

During cross examination,

Appellants

ha[d]

no

position

connection

whatsoever to the specifics of the case at hand.

Contrast

United

1924857,

at

*7-8

States

v.

Garcia,

(4th

Cir.

May

---

15,

F.3d

2014)

that
.

J.A. 1402.

----,

(holding

2014
that

WL
the

district court abused its discretion in allowing law enforcement

expert

testimony

where

there

were

inadequate

safeguards

to

protect the jury from conflating [the experts] testimony as an

expert

and

fact

witness

and

the

expert

used

her

personal

knowledge of the investigation to form (not simply to confirm)

her expert interpretations.).
Further, Corporal Marshs testimony did not, in fact,
contravene the rules of evidence.
7

Fed. R. Evid. 702 provides,

See also United States v. Richardson, 128 F. Appx 305,

309 (4th Cir. 2005) (even when a defendant is given late notice
of an expert witness, he is not entitled to relief unless he
suffered . . . prejudice as a result of th[e] [discovery]
violation).

40

A witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify
in the form of an opinion or otherwise if:
(a) the experts scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the
data;

testimony

is

based

on

(c)
the
testimony
is
the
principles and methods; and

sufficient

product

of

facts

or

reliable

(d) the expert has reliably applied the principles and

methods to the facts of the case.
Fed. R. Evid. 702.

Under Rule 702, the trial judge must ensure

that any and all [expert] testimony or evidence admitted is not

only

relevant

but

Pharmaceuticals,

Inc.,

reliable.
509

U.S.

Daubert
579,

589

v.

Merrell

(1993).

Based

Dow
on

Corporal Marshs qualifications and credentials, it was not an

abuse

of

discretion

for

the

district

court

to

allow

his

testimony to aid the jury in understanding the complex inner

workings of drug conspiracies and the connection between guns
and drugs.
Similar testimony has been upheld as appropriate by
this court.

See, e.g., United States v. Galloway, --- F.3d

----, 2014 WL 1424939, at *6 (4th Cir. Apr. 15, 2014) (under

plain error review, the district court did not err in qualifying
police officers as expert witnesses with regard to interpreting
intercepted drug-related phone conversations); United States v.
41

Baptiste, 596 F.3d 214, 223 (4th Cir. 2010) (on plain error
review,

expert

language used

testifying
by

drug

about

dealers

his

did

not

approach

to

contravene

decoding

Rule

702);

Hopkins, 310 F.3d at 151 (expert who explained how the materials
found

in

Hopkinss

experience

and

distribution

car

led

training,

was

him

that

properly

to

believe,

Hopkins

admitted

was

under

based

on

involved
Rule

in

702);

his
drug

United

States v. Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994) (holding

district

court

properly

admitted

expert

testimony

regarding

tools of drug trade); United States v. Brewer, 1 F.3d 1430,

1435-36

(4th

significance

Cir.
of

1993)

extensive

(expert
phone

testimony

traffic

concerning

between

the

Brewer

and

members of the alleged drug ring did not contravene Rule 702).
Likewise, courts -- including our own -- have also
held such expert testimony admissible in the context of drugs
and firearms.

See, e.g., Hopkins, 310 F.3d at 151 (affirming

admission of expert testimony that a small caliber weapon,

inter alia, led an officer to conclude that Hopkins was a drug
dealer); see also United States v. Anchrum, 590 F.3d 795, 804
(9th Cir. 2009) (allowing law enforcement agent to testify as
expert and opine on the various reasons a hypothetical drug
dealer would possess a firearm); United States v. Blount, 502
F.3d 674, 679-80 (7th Cir. 2007) (district court did not err in

42

allowing police officer to offer expert opinion that gun was

used to protect defendants drug business).
Further,

we

cannot

say

that

the

district

courts

admission of Corporal Marshs testimony was guided by erroneous

legal principles with respect to Federal Rule of Evidence 403.
Johnson, 617 F.3d at 292.

As explained above, the probative

value of the testimony was high, and the prejudice to Appellants

was low -- especially considering Corporal Marsh admitted he was
not speaking directly about the Bundy Boys conspiracy, and there
was

ample

evidence

otherwise

supporting

against Appellants Jeffries and Haith.

the

jury

verdicts

For these reasons, the

district court did not abuse its discretion in allowing Corporal

Marsh to testify as an expert. 8
V.
For the foregoing reasons, as to all Appellants, the
judgment of the district court is
AFFIRMED.

Nonetheless, we caution the Government against the havetheir-cake-and-eat-it-too

attitude
exhibited
in
this
case
regarding law enforcement testimony.
The Government either
views it as expert testimony or not.
If the former, they need
to behave accordingly and provide timely notice.

43