United States v. Eddie Lee Perry

14 F.4th 1253

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 29, 2021
• Docket: 16-11358
• Status: Published

Opinion

USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 1 of 52

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-11358 ________________________

D.C. Docket No. 1:14-cr-00039-WLS-TQL-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDDIE LEE PERRY, CHAD RAGIN,

Defendants - Appellants.

________________________

Appeals from the United States District Court for the Middle District of Georgia ________________________

(September 29, 2021) USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 2 of 52

Before GRANT and MARCUS, Circuit Judges, and AXON,* District Judge.

MARCUS, Circuit Judge:

In 2014, Eddie Lee Perry and Chad Ragin along with seven other co-

defendants were indicted by a federal grand jury on numerous charges related to

their involvement in a substantial multi-year, multi-state drug distribution

organization operating primarily in southern Georgia. The core charge was that

Perry, Ragin, and the others conspired to possess with intent to distribute in excess

of five kilograms of cocaine and in excess of 280 grams of cocaine base. The

charged conspiracy ran from January 2010 until the end of 2013. As part of an

extended investigation, and with a series of court-ordered wiretaps in hand, the

government intercepted thousands of cellular phone calls involving Perry, Ragin,

and the other conspirators. Many of these conversations involved coded

discussions about drugs. Some of the calls expressly referenced “coke jewel,”

“powder,” and something “for the nose.” During the trial, the government

introduced 100 of the calls through the testimony of its case agent, DEA task force

officer Kevin Lee. The government also presented testimony from sixteen other

witnesses and introduced Rule 404(b) evidence of other crimes, wrongs, and acts

* Honorable Annemarie Axon, United States District Judge for the Northern District of Alabama, sitting by designation.

2 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 3 of 52

against both Perry and Ragin. After seven days of trial, the jury convicted Perry

and Ragin on all counts.

In this consolidated appeal, Perry presents multiple challenges to his

convictions, while Ragin attacks his sentence on several grounds. Perry focuses

primarily on agent Lee’s testimony, arguing that the district court erroneously

admitted it because Lee was not properly qualified as an expert, and that, in any

event, the opinion testimony improperly blurred the line between expert and lay

witness testimony and drew impermissible inferences for the jury. But after a

thorough review of an extensive trial record, we are satisfied that Lee was properly

qualified as an expert in interpreting code words for drugs, and that Perry has

failed to establish that he was substantially prejudiced by any offending comments

Lee offered. Similarly, we conclude that Ragin’s challenges to his sentence are

without merit. We affirm.

I.

3 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 4 of 52

In early 2013, Drug Enforcement Administration and local law enforcement

agencies in southwest Georgia and Miami, Florida jointly began an extensive

investigation involving a large cocaine distribution scheme. As part of this

inquiry, between April and June 2013, the agents obtained three 30-day court-

authorized interceptions of calls on a cell phone used by Perry. During this period,

the agents intercepted thousands of calls, including many discussing drug

production and sales. Information drawn from the Perry wiretaps led to court-

authorized spinoff wiretaps, including one in December 2013, which focused on

Roger Ross, who was Perry’s source of cocaine.

Many of the calls ranged from discussions about cooking cocaine to setting

up potential sales. Three calls from April 13, 2013 are illustrative. The day started

with a call between Perry and Odell Cleveland (a named co-conspirator). Among

other things, Perry told Cleveland that he had “that Lulu for your ass,” using the

code word “Lulu” for powder cocaine. Perry then called Joseph Davenport (also a

named co-conspirator) and told him that they needed to meet. Shortly thereafter,

Perry spoke to Ross, his Miami supplier, and said that the powder cocaine was

“good” and “dropping dem draws quick.” At trial, Kevin Lee -- who was the

narcotics and vice commander of the Thomas County Sheriff’s Office, a task force

officer working with the DEA, and the chief investigator in this case -- testified

that “dropping dem draws quick” meant it was “easy to convert [] from powder

4 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 5 of 52

cocaine into crack cocaine.” Ross then asked Perry if he wanted “some more” and

Perry said yes. Perry also told Ross that “Ole Bro Bro he fixing to come get at me

. . . so Imma need.” Agent Lee testified that “Ole Bro Bro” referred to Joseph

Davenport (a named co-conspirator and co-defendant) and that Perry was telling

Ross he would need more cocaine in the future. On the same call, Ross told Perry

that he was going to “have nephew do that and . . . hit ya up . . . later on.” Agent

Lee offered that “nephew” referred to Ross’s cousin 1 and courier, Chad Ragin,

who would deliver more cocaine.

The intercepted telephone calls also led to the arrests of several co-

conspirators and the seizure of drugs and money. Thus, for example, on May 4,

2013, the wiretap surveillance team intercepted a phone call between Perry and

Davenport. The two co-conspirators discussed their progress getting “one” from

an unnamed man, which they could sell and charge “14 to make [] a dollar a

piece.” Agent Lee testified that the men were discussing buying one ounce of

powder cocaine from Vert Washington (another co-conspirator) and selling it for

$1,400, in order to make $100 each. On May 16, agent Lee received a call from an

informant, who led Lee to a convenience store parking lot where Davenport and

Washington were sitting in a vehicle. When agent Lee arrived, after obtaining

1 In a written statement following his arrest, Ragin refers to Ross as his cousin. However, at several points in the taped conversations and at trial, Ragin is referred to as Ross’s nephew. 5 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 6 of 52

consent to search, he found in the vehicle in plain view a cardboard tube containing

three or four bags of cocaine. The next day, the team intercepted another call from

Davenport to Perry. During the call, Davenport explained that he and Washington

had been stopped by the police and that the police had found, and seized, cocaine --

specifically “[a]bout three halves and . . . some powder” -- from the vehicle.

Later that month, the surveillance team intercepted telephone calls between

Perry and Darnel Anderson.2 In one call, on May 28, 2013, Anderson asked Perry

to bring “two by here,” which, agent Lee later explained, referred to two circles of

crack cocaine. The next day, Anderson called Perry again and told him to “go

ahead bring me another.” The same day, the team received a tip that Perry would

be making a drug delivery to an unknown buyer. Dewayne Pearson, an

investigator with the Cairo, Georgia Police Department, set up surveillance near

Perry’s residence and followed him to a car wash, where Perry met with Anderson.

Pearson saw the two men enter a building for roughly five minutes before walking

back to Perry’s truck. Perry reached for something inside his truck and then

returned to the building with Anderson for a few more minutes. Perry left, and

“just moments” later, police returned to the car wash with a warrant for Anderson’s

arrest. As Anderson fled the scene, a pursuing officer saw him throw a shoe box

2 Darnel Anderson died prior to Perry and Ragin’s trial. 6 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 7 of 52

onto the roof of a nearby residence. When the box was recovered, the officer

found over 95 grams of crack cocaine inside.

In December 2013, the team intercepted phone calls between Perry and Ross

that discussed Perry’s efforts to collect money he owed to Ross. During one of

them, on December 16, 2013, Perry explained that “it’s slow motion around here”

and that he wasn’t where he “need[ed] to be,” which agent Lee told the jury meant

that Perry hadn’t collected enough money to repay Ross. Ross pushed back,

offering that Perry was making Ross look “real, real, real shady right now,” and

that “this cat” was calling him “six or seven times, back to back, back to back,

back to back.” Agent Lee explained that Ross was “looking bad to his source of

supply” because Ross couldn’t pay. Perry responded that Ross should “just let him

know everybody okay it’s just slow.”

The next day, the team intercepted a call between Ross and Ragin. This

time, Ragin asked Ross if he’d spoken to Perry and the two discussed Ragin’s plan

to travel to Cairo, Georgia. Then, on December 21, Ross called Perry again,

asking about the money Perry owed him. Perry told Ross that he had “a dub,” or

$20,000, as Lee explained it. Ross expressed disappointment with the amount, but

said he had “to get whatever [he] can get . . . right now.” The next day, Ross

called Perry to tell him that Ragin would be driving from Miami to Cairo in order

to collect the money. During this call, Perry told Ross that he was placing tape

7 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 8 of 52

around the cash and the sound of wrapping tape around the money could be heard

on the phone call.

That day, December 22, law enforcement agents surveilled Perry’s residence

in Cairo, Georgia. They spotted Ragin’s vehicle. On his way back to Florida,

Ragin was pulled over for speeding while driving through southern Georgia.

Officers discovered in the car a package wrapped in duct tape containing $18,870

in cash, and another $840 in cash on Ragin’s person. Ragin followed the agents

back to the station in his own car, but had the presence of mind to call Ross on the

way, explaining that he (Ragin) had been stopped by the police and that he

believed “they watching that boy[’s] house,” or that the police were watching

Perry’s residence. Ross then called Perry in order to warn him to “keep [his] eyes

open” and “look[] out” and described the cash seizure.

At the police station, Ragin told the agents that the cash was his, but that he

earned the money by selling cars. The government later initiated forfeiture

proceedings against the money, prompting Ragin to produce an affidavit from

Nader Aweidh, who swore that he purchased a vehicle from Ragin for $20,000.

However, the team intercepted a series of phone calls between Ross and Ragin

discussing different explanations for the money. For example, during one call

Ross told Ragin that they could find “somebody that could come back and say that,

hey look I loaned him this money to go ahead and try to get a car that he wanted.”

8 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 9 of 52

Ragin then proposed to “say it’s my money” because “I got the lawsuit.” At trial,

Aweidh testified, for the government, that his affidavit was not true and that he

only signed it “as a favor” to Ragin.

On September 11, 2014, a federal grand jury sitting in the Middle District of

Georgia charged Eddie Lee Perry, Ragin, Ross, Davenport, Washington,

Cleveland, and three other co-conspirators -- Xavier Jordan, Brandon Perry, 3 and

Michael Perry4 -- with conspiracy to possess with intent to distribute cocaine and

crack cocaine beginning on or about January 1, 2010, and continuing until on or

about December 31, 2013, “the exact dates being unknown to the Grand Jury,” in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), (iii), 846. Perry was also

charged in thirteen substantive counts with the use of a communication facility in

furtherance of a drug crime, in violation of 21 U.S.C. § 843(b). Ragin was charged

in two additional counts with the use of a communication facility in furtherance of

a drug crime, in violation of 21 U.S.C. § 843(b); one count of conspiring to falsify

records in a federal investigation, in violation of 18 U.S.C. § 371 in connection

with 18 U.S.C. § 1519; and two substantive counts of falsifying records, in

violation of 18 U.S.C. § 1519.

3 Brandon Perry is Eddie Lee Perry’s son. 4 Michael Perry is Eddie Lee Perry’s brother. 9 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 10 of 52

Perry, Ragin, and Davenport were tried together in a case that lasted seven

days.5 The tapes from the government’s wiretap made up the vast majority of the

evidence presented and included 76 calls intercepted from Perry’s cell phone and

24 additional cellular phone calls intercepted from Ross’s phone. Notably, the

defendants did not object to the introduction of almost all of these phone calls.

Counsel for Perry raised one hearsay objection to one phone call Perry received

from Dexter Young on April 18, 2013. He claimed that Young was not present in

court and would not testify, therefore the entire conversation was inadmissible

hearsay. The district court overruled the objection. Other than this one hearsay

claim, no other objections were raised to the admissibility of the other 99 recorded

conversations.6

The government’s main witness was agent Lee, who testified at considerable

length. Agent Lee was qualified as an expert “in coded drug language and

methods of trafficking, as well as the manufacture of crack cocaine from powder

cocaine.” As we’ve described, the government introduced 100 tape recorded

conversations into evidence along with transcripts during the course of Lee’s

testimony. When relevant, he was asked about and opined on the meaning of

5 Ross and the others were tried separately. 6 After the calls were admitted, Perry’s counsel objected to the government’s questioning of agent Lee concerning two calls between Perry and individuals not named in the indictment, arguing that the calls were not relevant. The district court overruled both objections. 10 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 11 of 52

certain drug “code” words used by Perry and the others. Perry’s counsel objected

to the scope of Lee’s testimony only one time, when Lee testified about a call

between Perry and Ross on December 16, 2013. Perry claimed that Lee’s

testimony invaded “the purview of the jury” by interpreting common English. The

district court overruled the objection. Perry’s counsel offered another objection to

Lee’s testimony on the ground that he was speculating about the meaning of one

conversation, but did not argue that this testimony invaded the province of the jury.

The government also introduced Rule 404(b) crimes, wrongs, or acts

evidence for both Perry and Ragin, involving events that fell outside the timeframe

of the charged conspiracy. For Perry, the government moved to introduce the

factual basis surrounding his earlier federal conviction for the distribution of crack

cocaine in southern Georgia. Perry objected, arguing that the evidence was unduly

prejudicial and would “give[] an unfair advantage[]” to the government. The

district court disagreed, finding that the probative value of the evidence was not

outweighed by the danger of undue prejudice. But, to limit any prejudicial impact,

the court directed the parties to omit any reference to Perry having been convicted

or having entered a guilty plea.

While Perry disagreed with the district court’s ruling, he agreed that the

following stipulation conformed to the district court’s ruling about what limited

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information could be included in the 404(b) proffer. The stipulation provided to

the jury read this way:

Members of the jury, the United States and the Defendant Perry stipulate and agree that Defendant Perry made the following sworn statement in a prior court proceeding: “From on or about January 1, 1996, to on or about April 3, 2004, Eddie Lee Perry, Jr. was involved in the distribution of multi-ounce quantities of crack cocaine. During this timeframe, the Defendant was supplied with cocaine by various sources which included Michael Tise. The defendant sold crack cocaine at various locations in the Cairo, Georgia area.

On April 3, 2004, Terrence Williams under the control of law enforcement made a controlled buy of cocaine base and cocaine from the defendant, Eddie Lee Perry, Jr. The buy was preserved on audio tape. The cocaine base purchased from the defendant on this date tested positive for a total of 93.4 grams and the cocaine tested positive for a total of 134.4 grams.

After the sale on April 3, 2004 was consummated the officers converged at 1137 11th Street, Cairo, Georgia and arrested Eddie Lee Perry, Jr. The officers recovered the buy money that Williams used to obtain the cocaine from Perry, Jr. The officer[s] executed a search at 212 Humble Street, the home of Eddie Lee Perry, Jr[.] and recovered numerous boxes of sandwich baggies, two cups containing cocaine residue and a scale.

As for Ragin, the government’s Rule 404(b) evidence related to his arrest in

this case, which occurred on September 23, 2014, at his home in Florida. During

the arrest, law enforcement agents discovered 890 grams of cocaine, 947 grams of

heroin, and two handguns. They also found a bag containing drug paraphernalia,

including a money counter and scales, and over $16,000. After being arrested,

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Ragin made an inculpatory statement that was received in evidence against him.

Ragin admitted that he held the drugs for co-defendant Ross:

The cocaine and heroin you found at my house belongs to my cousin, Roger Ross. Ross paid me to keep it for him. I placed the cocaine and heroin where you found it. He gave me a whole key (kilogram) of cocaine. He gave me more than the amount of heroin. He comes over and gets ounces of heroin at a time. I’ve been keeping cocaine and heroin at my house for Roger Ross for about two or three months. Roger has given me 3 kilos of heroin and one [kilo] of cocaine to keep for him.

The jury found Perry, Ragin, and Davenport guilty on all counts. It returned

a special verdict, finding that Perry conspired with the intent to distribute cocaine

weighing more than 5 kilograms and cocaine base weighing more than 280 grams,

and that Ragin conspired with the intent to distribute cocaine weighing less than

500 grams. Perry was sentenced to 240 months in prison on the conspiracy count,

and 96 months on the remaining counts, to run concurrently for a total sentence of

240 months. The court also imposed a mandatory assessment of $1,400 and a ten-

year period of supervised release.

At Ragin’s sentencing, the district court considered the drugs and guns

found during Ragin’s arrest as “relevant conduct” under the Sentencing Guidelines,

yielding a total offense level of 34 and a sentencing range of 168 to 210 months.7

The court sentenced Ragin to 180 months’ imprisonment on the conspiracy count;

7 The probation officer explained at the hearing that without this enhancement, Ragin would have a total offense level of 28 and a sentencing range of 87 to 108 months’ imprisonment. 13 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 14 of 52

96 months in prison on the two communication counts; and 60 months on the

counts related to the falsification of records. The sentences on each of the counts

were to run concurrently, yielding a total prison term of 180 months. Additionally,

the court imposed a mandatory assessment of $600 and a six-year period of

supervised release.

This consolidated appeal followed.

II.

A.

Perry raises several claims concerning the admissibility of the expert

testimony of agent Kevin Lee. Perry argues that the district court erroneously

qualified Lee as an expert in coded drug language, and that Lee improperly offered

opinion testimony beyond his expert knowledge. In the process, he wrongfully

invaded the province of the jury. We are unpersuaded.

We review a district court’s evidentiary decisions concerning the

admissibility of expert testimony for abuse of discretion, which means we will not

reverse unless the ruling is “manifestly erroneous.” United States v. Barton, 909

F.3d 1323, 1330 (11th Cir. 2018) (quoting United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (en banc)). Federal Rule of Evidence 702 controls the

admissibility of expert testimony. The trial court is required to consider whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert 14 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 15 of 52

reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Frazier, 387 F.3d at 1260.

In United States v. Holt, we “affirmed the admission of expert testimony by

law enforcement officers interpreting drug codes and jargon.” 777 F.3d 1234,

1265 (11th Cir. 2015) (collecting cases). In that case, the defendant lodged a

similar objection to the qualification of the government’s lead agent as an expert

witness offering opinion testimony about coded drug language. Id. at 1250–51.

We held that the district court did not err in admitting the agent’s expert testimony

because the trial court found she was qualified “based on, most notably, her

extensive involvement in this particular investigation . . . as well as her training,

experience in previous wiretaps, and general investigative experience during her

six years as a DEA Agent.” Id. at 1265. The agent formed her opinions “based on

her training, experience, discussions with cooperating co-conspirators, general

knowledge of common drug prices and quantities, review of nearly all of the

communications in this case, and the context of each particular communication.”

Id. at 1265–66.

So too here. Like the lead agent in Holt, agent Lee had substantial

experience in narcotics investigations -- he worked in law enforcement for 19 years

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and participated in thousands of narcotics investigations, he interviewed thousands

of defendants and confidential informants, and assisted in numerous wiretap

investigations which led him to review literally thousands of recorded

conversations. And like the agent in Holt, agent Lee formed his opinions using

reliable methods and based on a combination of experience, general knowledge,

and familiarity with the intercepted communications and their context. Finally,

Lee reviewed all of the germane conversations about the distribution of drugs

drawn from the Perry wiretaps.

Perry argues, nevertheless, that agent Lee’s expertise does not meet the

requirements of Rule 702 because it was based solely on knowledge he gained as a

case agent in this case. Perry says that when agent Lee was asked how he

determined the meaning of code words, he explained that he did so “[b]ased on the

investigation that we’re doing at that time and what we have learned.” But Perry

cherry-picks from among many of agent Lee’s statements. Lee also testified that

he had worked “almost exclusively with narcotics-related investigations” for

almost twenty years, participating in “thousands” of such investigations, and that

60 to 70 percent of those investigations involved cocaine. He explained that he

developed substantial expertise in code words by conducting thousands of

interviews with defendants and cooperating sources, observing that it was “through

these types of information [that he had] learned some code words associated with

16 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 17 of 52

drug trafficking.” Lee also testified that he stayed informed of “what people are

doing in our community, what phrases they’re using, the dollar amounts of

purchases . . . If we’re doing an investigation, we may send a text or record a

conversation, so we see the actual words that they are using.” Although agent Lee

answered one question by focusing on his knowledge drawn from this

investigation, we cannot say that it was manifestly erroneous for the trial court to

qualify him as an expert on coded drug language given the entirety of his ample

experience. No other challenges were raised against Lee’s expertise concerning

methods of trafficking and the manufacture of crack cocaine from powder cocaine.

Perry also claims that Lee’s testimony invaded the province of the jury

because he offered opinions about matters that went beyond his “expert”

knowledge. At trial, the government used agent Lee’s testimony to introduce

audio recordings and transcripts of the 100 intercepted phone calls from the

wiretaps of Perry and Ross. When the conversation included “code,” the

government would ask Lee questions about the meaning of words in the recording.

The following exchange about a conversation between Perry and co-conspirator

Odell Cleveland on April 13, 2013, is representative:

Q: And if we could scroll down just a little bit here on page one in the transcript, you see there where it’s entered: I got that Lulu for your ass, boy? . . . Now, in the context of this conversation, do you believe you understand what the word Lulu means, based on your training and experience?

17 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 18 of 52

A: Yes, ma’am. He’s talking about . . . high quality cocaine.

Q: And what is the basis for your opinion that Lulu refers to high quality cocaine?

A: A lot of times they call powder cocaine a female, that girl, that lady, that bitch. So they’re referring to a female when they refer to the powder.

It is well established that “deciphering of coded language is helpful to the

jury and therefore permissible.” United States v. Hawkins, 934 F.3d 1251, 1264

(11th Cir. 2019). Throughout his testimony, agent Lee offered an opinion on a

variety of terms that were code words for drugs, including “lulu,” “teenager,” “best

girl in town,” “biscuit head,” “something for the nose,” “gator,” “zip,” and “zone.”

He also testified about the meaning of terms that referred to the quantity of drugs

and their price, such as “dubs,” “a G,” “a little two-dollar lick,” “a cookie,” and a

“ticket,” as well as terms that referred to a drug’s quality, such as “loud,” “French

fries,” and “straight,” and even terms related to drug sales, such as “coke jewel.”

This testimony was well within the scope of his expertise and was properly

admitted. See United States v. Emmanuel, 565 F.3d 1324, 1336 (11th Cir. 2009).

In other instances, agent Lee’s testimony went further, discussing the

meaning of ordinary English words and phrases that came up on the tapes or

offering opinions based on what certain language meant in the context of the

investigation. Thus, for example, in regard to a conversation between Perry and

Dexter Young on April 22, 2013: 18 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 19 of 52

Q: Now, early on in that conversation, Agent Lee, Mr. Young makes the statement: I ain’t making no money like this and you ain’t either, I mean. . . . [T]ell the ladies and gentlemen of the jury what you believe that means?

A: Again, this is referring to the two ounces that Mr. Young had purchased from Mr. Perry and where he couldn’t make it -- convert it into crack cocaine like he wanted, and that’s when Mr. Davenport was called over and they corrected one that we talked about earlier. And he’s saying that he’s not messed with the other one, so he’s not being able to convert the powder into crack, so he’s not making any money.

And in another instance about a call between Perry and Ross on December 16,

2013:

Q: Mr. Ross says: Got me looking real crazy, man. Do you have an understanding of what that means?

A: Yes, ma’am. Because his people are putting pressure on him to pay them the money. And when I’m saying “he” I’m talking about Mr. Ross -- for Mr. Ross to pay his people back their money.

Notably, Perry only objected to the scope of agent Lee’s testimony one time,

on the third day of his testimony,8 in response to Lee’s testimony about Ross

looking “real crazy.” Perry’s counsel argued:

Some of this -- I know he’s an expert in some of the street lingo, but some of this goes into the purview of the jury to decide what common, common phrases, common parlance means. He[’s] taking away from the jury the -- interjecting his thoughts about every single word that goes beyond what his expertise is, so I would object to this.

8 Lee did not testify for the entirety of each day. Lee was excused on the third day of his testimony after testifying about the Georgia wiretap and was recalled later the same day to testify about the Florida wiretap. 19 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 20 of 52

The government responded that “there’s a lot of things that crazy could mean in

the common parlance, but I’m asking this witness if it has a specific meaning in the

drug context.” The district court overruled the objection, and instructed the jury

that “certain witnesses can testify as experts, but it’s for you to determine whether

to accept their testimony as to what weight to give it.” Perry did not object again

to the scope of Lee’s testimony.

At oral argument, Perry conceded that his single objection was insufficient

to preserve the issue for abuse-of-discretion review and so plain error review

applies. See Hawkins, 934 F.3d at 1264. Plain error review affords us “only a

limited power to correct errors that were forfeited.” United States v. Rodriguez,

398 F.3d 1291, 1298 (11th Cir. 2005) (internal quotation omitted). A defendant

must establish three conditions before a court may consider exercising its

discretion to correct an error: “First, there must be an error that has not been

intentionally relinquished or abandoned. Second, the error must be plain -- that is

to say, clear or obvious. Third, the error must have affected the defendant’s

substantial rights.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018)

(internal quotation omitted). To establish that the error affected his substantial

rights, “the defendant ordinarily must show a reasonable probability that, but for

the error, the outcome of the proceeding would have been different.” Id. at 1904–

05 (internal quotation omitted). Only after all three conditions are met may the 20 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 21 of 52

court “exercise its discretion to correct the forfeited error if the error seriously

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

1905 (internal quotation omitted); see also Rodriguez, 398 F.3d at 1298.

Perry has failed to establish plain error. As for the first two prongs of the

plain error test, we recognize that there are some parts of agent Lee’s testimony

that were plainly improper -- where he crossed the line from interpreting coded

drug language to opining about plain language, speculating, summarizing the

evidence or telling the jury what inferences to draw from the conversations. So,

for example, in the conversations we just quoted, Lee erroneously translated what

“real crazy” and “making no money” meant, offering opinions and summarizing

the evidence in the case, instead of allowing the jury to interpret these plain-

English phrases on its own. See Hawkins, 934 F.3d at 1266.

To be sure, this is not the first time a case agent has presented lay and expert

“dual testimony.” Our Court has long accepted the “well-established rule that an

experienced narcotics agent may need to testify as an expert to help a jury

understand the significance of certain conduct or methods of operation unique to

the drug distribution business.” United States v. Garcia, 447 F.3d 1327, 1335

(11th Cir. 2006) (internal quotation omitted). At the same time, we’ve cautioned

about the “particular difficulties, warranting vigilance by the trial court, [that] arise

when an expert, who is also the case agent, goes beyond interpreting code words

21 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 22 of 52

and summarizes his beliefs about the defendant’s conduct based upon his

knowledge of the case.” Emmanuel, 565 F.3d at 1335 (internal quotation omitted).

In those instances, where “the witness testifies as both a fact witness and an expert

witness in the same trip to the witness stand,” we’ve advised that “the government

and the court must take some special precautions to make clear for the jury when

the witness is relying on his expertise and when he is relying only on his personal

knowledge of the case.” Hawkins, 934 F.3d at 1268 (internal quotation and

citations omitted). In this case, the trial court and prosecutor should have taken

greater care to cabin the case agent’s expert testimony to his areas of expertise and

to make clear to the jury in what capacity agent Lee was testifying.

But despite the erroneous admission of this testimony, Perry has not

established any plain error that affected his substantial rights -- that is, he has not

met his burden of showing a reasonable probability that, but for agent Lee’s

challenged testimony, the outcome of the proceeding would have been different.

See Rosales-Mireles, 138 S. Ct. at 1904–05. In order to establish a reasonable

probability, “it is the defendant rather than the government who bears the burden

of persuasion with respect to prejudice.” Rodriguez, 398 F.3d at 1299 (quoting

United States v. Olano, 507 U.S. 725, 734 (1993)) (cleaned up). “When an

appellate court considers error that qualifies as plain, the tables are turned on

demonstrating the substantiality of any effect on a defendant’s rights; the defendant

22 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 23 of 52

who sat silent at trial has the burden to show that his ‘substantial rights’ were

affected.” United States v. Monroe, 353 F.3d 1346, 1354 (11th Cir. 2003) (quoting

United States v. Vonn, 535 U.S. 55, 62–63 (2002)) (alteration and emphasis

omitted). We have explained that this burden “is anything but easy” in order to

enforce the policies that underpin Rule 52(b) generally, “to encourage timely

objections and reduce wasteful reversals by demanding strenuous exertion to get

relief for unpreserved error.” Rodriguez, 398 F.3d at 1299 (quoting United States

v. Dominguez Benitez, 542 U.S. 74, 82 (2004)). The Supreme Court has labeled

this burden as “not . . . too easy for defendants.” Dominguez Benitez, 542 U.S. at

82. Indeed, by objecting in a timely manner, the district court is afforded the

opportunity to correct any mistake in real time.

Thus, in United States v. Emmanuel, we held that any improper testimony

by a case agent did not affect the defendant’s substantial rights. The defendant

Shervin Emmanuel was arrested and convicted of conspiring to import cocaine into

the United States, attempting to import cocaine into the United States, possessing

with intent to distribute cocaine while on board a vessel of the United States, and

two counts of importing cocaine into the United States. 565 F.3d at 1329. He

appealed his convictions, arguing, in part, that there was insufficient evidence to

support his conviction and that the district court should have excluded opinion

testimony regarding the meaning of some of the intercepted phone calls. Id. at

23 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 24 of 52

1330. As for the sufficiency argument, we explained that the “primary evidence of

Emmanuel’s participation” in the conspiracy “was his own incriminating

conversations.” Id. at 1333. As we noted, “Emmanuel discussed drug payments,

plans to ship large amounts of cocaine to Florida, the availability of drug

smuggling ships, and security for the smuggling operations,” which was

“corroborated by seizures of drugs and drug money.” Id. Further, there was also

testimony from co-conspirators about Emmanuel. Id.

Turning to the opinion testimony of the case agent, Sergeant Wayne

Woodside, we noted that Woodside was offered as an expert in interpreting drug

codes and jargon used during the intercepted calls. Id. at 1335. We explained that

“[m]ost of Sergeant Woodside’s testimony was specific and closely related to his

interpretation of drug codes and jargon,” which was properly admitted. Id. at

1336. For example, he properly interpreted the following code words:

“two dollars” means $2,000; “D Boys” means agents from the Drug Enforcement Administration; “scanner” means wiretap; “movements” means law enforcement activities; “girls” means cocaine; “pouring that concrete” means exchange of the cocaine; “a check for $300” means 300 kilos of cocaine; and “for them to find the girls with this guy, they got to pick him out of the water, and, you know, and cut” means they have to take the boat out of the water and cut it up to find the cocaine.

Id. Although we found that some of Sergeant Woodside’s testimony was not

specific to his expertise, we held that any such testimony did not affect

Emmanuel’s substantial rights because of the district court’s instruction to the jury

24 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 25 of 52

to determine “whether the testimony is credible,” as well as the fact that the

primary evidence against Emmanuel were the intercepted calls. As we explained,

Even if none of Sergeant Woodside’s expert testimony was admissible, the jury could have easily interpreted the recorded conversations as involving drugs based on other evidence in the case, including actual seizures of drugs and drug money and testimony from coconspirators. Considering the substantial evidence against Emmanuel, Sergeant Woodside’s opinion testimony that went beyond interpreting drug codes and jargon was merely cumulative and was not essential to the jury’s verdict.

Id.

By contrast, in United States v. Hawkins, a panel of this Court vacated the

convictions of defendants James Hawkins and Wallace McCree for conspiracy to

distribute cocaine and related offenses because the government’s chief investigator

was offered and admitted as an expert in drug code words, but his testimony

included summaries of evidence, interpretations of plain language, and inferences

drawn from the evidence. 934 F.3d at 1264–69. The investigator was “the

principal prosecution witness” and testified for more than half of the trial. Id. at

1267. The panel also stressed that the investigator was the only witness who

testified about Hawkins, and that without the investigator’s testimony, “there

would not have been sufficient evidence to convict Hawkins on any of the counts

against him.” Id. The panel concluded, there could “be no doubt that [the

investigator’s] improper testimony affected the outcome of the trial.” Id. The

Hawkins panel did not discuss the tapes themselves in any detail, leaving us 25 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 26 of 52

without any insight as to why they were not evidence of Hawkins’s guilt in their

own right. Thus, the government’s case turned exclusively on the investigator’s

improper testimony.

We begin with the obvious: “each case must be decided on its own facts.”

United States v. Smith, 967 F.3d 1196, 1208 (11th Cir. 2020) (quoting United

States v. Carcione, 272 F.3d 1297, 1301 n.6 (11th Cir. 2001)); see also Ker v.

California, 374 U.S. 23, 33 (1963) (“Each case is to be decided on its own facts

and circumstance.”) (internal quotation omitted); United States v. Rogers, 701 F.2d

871, 874 n.3 (11th Cir. 1983) (same). This is especially true for plain error review,

which “depends upon the particular facts and circumstances of each case.” United

States v. Duke, 527 F.2d 386, 391 (5th Cir. 1976); see also Lloyd v. United States,

412 F.2d 1084, 1087 (5th Cir. 1969) (“This being the case, we cannot hold, in the

particular circumstances of this case, that the Court's instructions regarding the

statutory inference [were] plain error.”).9 Neither the panel in Emmanuel nor the

one in Hawkins faced the same set of facts we face today. However, a thorough

review of the ample record here leads us to the conclusion that this case is more

similar to Emmanuel than Hawkins.

9 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. 26 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 27 of 52

For one thing, just as in Emmanuel, the district court instructed the jury -- on

multiple occasions -- about how it could evaluate agent Lee’s opinion testimony.

The first instruction was given on the second day of trial after the government

tendered agent Lee as an expert witness. The court explained that “with regard to

all witnesses, an expert witness, as with any other witness, it’s up to you to

determine what credibility or weight to give to a witness’s testimony.” Next, the

court repeated this instruction after Perry’s attorney objected to agent Lee’s

testimony as invading the province of the jury. In overruling the objection, the

court explained that “certain witnesses can testify as experts, but it’s for you to

determine whether to accept their testimony as to what weight to give it. So you

are able to evaluate that as to whether it satisfies you or whether there’s other

reasons that you cannot.” Finally, the court gave the instruction anew as part of the

closing instructions. It began with instructions about the treatment of testimony

generally: “Now, in saying that you must consider all of the evidence, I do not

mean that you must accept all of the evidence as true or accurate. You should

decide whether you believe what each witness had to say and how important that

testimony was.” Then, the court instructed the jury on the treatment of expert

testimony specifically:

When a scientific, technical, or other specialized knowledge might be helpful, a person who has special training or experience in that field is allowed to state an opinion about the matter.

27 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 28 of 52

However, that does not mean you must accept the witness’s opinion. As with any other witness’s testimony, you must decide for yourself whether to rely upon that opinion.

The jury was reminded of its ability to critically assess the expert testimony by the

defense counsel as well. These instructions clearly informed the jury that agent

Lee’s testimony need not be accepted. Emmanuel, 565 F.3d at 1336.

The intercepted calls -- all 100 of them -- were appropriately admitted into

the record for the jury to consider; indeed, they formed the guts of the

prosecution’s case, along with the other evidence presented at trial. See id. at

1336. These intercepted phone calls included recordings of Perry himself offering

a man “the best girl in town”; discussing “that Lulu” with co-conspirator Odell

Cleveland; telling Dexter Young that he would send someone to help “wash one of

them dogs”; sending Davenport to go “get that thang to do what it wanted to do” in

exchange for $50; negotiating the price for “something for the nose” with two

potential customers; agreeing to give his son “one of them balls” for his “little coke

jewel”; offering “two balls” for resale; discussing “real biscuit heads” with his

brother; pitching “3 big girls” to a potential customer; straightening out

underweight sales for dissatisfied customers; and discussing sales, collecting

money, and “putting that tape” around something for his Miami supplier, Ross.

The jury was readily able to infer from these conversations that Perry was

engaged in one or more illicit drug transactions. Many of them used code words

28 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 29 of 52

for drugs, but others explicitly referred to drugs. As we’ve already noted, on one

occasion co-conspirator Brandon Perry told Eddie Lee Perry about his “little coke

jewel.” On another occasion, Perry discussed the price of the product “if he’s just

gonn[a] use it for the nose,” a phrase that was repeated in another call by a

customer who asked Perry for “something for the nose.” And in still another

conversation Davenport told Perry he had been in a car with “three halves and . . .

some powder.” The jury didn’t need agent Lee to translate those words because

they were not coded nor inferential. A “little coke jewel” left little for the jury to

speculate about, as did Perry’s observation that he was “gonn[a] use it for the

nose.” And Davenport’s reference to “some powder” being found in Washington’s

car also left little to the imagination. The jury surely could infer that these

references to “coke,” to “powder,” and to something to be used “in the nose” did

not refer to baking soda, sugar, cosmetics, or a nasal spray. Even Perry appears to

accept -- or at least not dispute -- that most of the recorded cell phone calls were

properly introduced into evidence. Perry has not begun to explain, much less meet

his burden to show, how the language in the phone calls did not give the jury a

sufficient basis to find, beyond a reasonable doubt, that he knowingly and willfully

participated in the charged narcotics conspiracy.

And, importantly, the phone calls are not the only evidence establishing a

broad narcotics conspiracy in this record. Just as in Emmanuel, Perry’s intercepted

29 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 30 of 52

phone calls were “corroborated by seizures of drugs and drug money.” Emmanuel,

565 F.3d at 1333. Among other things, the government specifically tied many of

the intercepted calls involving Perry and the other co-conspirators to extrinsic

evidence seized during three separate drug transactions -- physical evidence that

Perry has not sought to exclude. In the process, the government has substantially

corroborated that the intercepted phone calls involved discussions about the

narcotics transactions charged in the multi-count indictment.

For one thing, the government introduced calls from May 2013 between

Perry and co-conspirator Davenport about getting in touch with Vert Washington

and purchasing cocaine for resale from him in the immediate days before the

seizure of 6.59 grams of crack cocaine and less than a gram of powder cocaine

from Washington’s car on May 16. The government connected this event to a call

between co-conspirators Perry and Davenport on May 17, the day after the seizure,

in which they discussed the lost cocaine. Davenport explained that he and

Washington were stopped by the police and he referenced that “three halves and . .

. some powder” were taken from the car.

The jury was also presented with numerous other calls between Davenport

and Perry in which the two used coded language such as “jumping out the pot” and

“ha[ving] one off in the mug” and several numbers. The jury would have

recognized from agent Lee’s expert testimony that these terms related to the

30 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 31 of 52

production of crack cocaine. Although these calls did not relate to the incident

with Vert Washington, they also illuminate the involvement of Davenport and

Eddie Lee Perry in the production and distribution of crack cocaine. The jury

could readily find that Davenport and Perry were not just some unlucky bystanders

to the seizure of drugs from Washington’s car.

Second, and wholly distinct from the first extrinsic act, the government

introduced two calls between Perry and Darnel Anderson, also from May 2013,

when Anderson requested a delivery from Perry, and tied these calls to Perry’s

visit to Anderson at a car wash in Cairo. As officer Pearson testified, Perry met

with Darnel Anderson “just moments” before other officers arrived to arrest

Anderson and subsequently seized almost 100 grams of crack cocaine from

Anderson after he fled the car wash.

Third, the prosecution introduced several other calls several months later (in

December 2013) between Perry and Ross when they discussed Perry’s efforts to

repay Ross for drugs he had been supplied. Thus, for example, in one call on

December 22, 2013, Ross told Perry that Ragin was on his way to collect the

money, and Perry told Ross that he was “putting that tape around” it. Officer

Pearson and officer Bruce Womble both testified that on December 22, they saw

Ragin’s car parked in front of Perry’s home. Thereafter, again on the same day,

Ragin was stopped by the police on his way back to Florida carrying $18,870 in

31 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 32 of 52

cash wrapped together in tape in his car, and an additional $840 in cash on his

person.10 The government also introduced intercepted phone calls between Ragin

and Ross after Ragin was stopped by the police, calls in which Ragin and Ross

discussed false exculpatory explanations for why Ragin was carrying so much

cash. Moreover, Ragin told Ross that “they watching that . . . house,” referring to

Perry’s house where the two men had met earlier that day. The next day, Ross

called Perry back to describe the cash seizure and warn Perry to “keep [his] eyes

open” and “look[] out.”

By tying Perry’s own phone calls to the arrests of some of his co-

conspirators and to the seizure of money and drugs from some of them, the

government supplied ample corroborative evidence that Perry was a knowing and

willful participant in the drug conspiracy. No such corroborative evidence

apparently existed in Hawkins.

Still further, the government introduced relevant 404(b) evidence --

completely independent of agent Lee’s opinion testimony -- that Perry had

previously been involved in a multi-year cocaine trafficking operation in the same

geographic area as the events that transpired in this case. The stipulation was read

to the jury and explained that, for some eight years and three months (from on or

about January 1, 1996 to April 3, 2004), Perry had been involved in distributing

10 Agent Lee testified that in 2013, a kilo of powder cocaine was worth $36,000 to $38,000. 32 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 33 of 52

multi-ounce quantities of crack cocaine in the Cairo, Georgia area. The stipulation

also described the controlled buy of powder and crack cocaine by an officer from

Perry.

This was powerful evidence for the jury to consider as evidence of Perry’s

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Perry pleaded not guilty to

the conspiracy charge in this case and a “defendant who enters a not guilty plea

makes intent a material issue which imposes a substantial burden on the

government to prove intent, which it may prove by qualifying Rule 404(b)

evidence.” United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007); see

also United States v. Barrington, 648 F.3d 1178, 1186 (11th Cir. 2011). When

“extrinsic act evidence is offered to prove intent, ‘its relevance is determined by

comparing the defendant’s state of mind in perpetrating both the extrinsic and

charged offenses.’” Barrington, 648 F.3d at 1186 (citation omitted). Here, the

404(b) evidence was relevant to the conspiracy case as the government alleged that

Perry was again knowingly and willfully involved in a multi-year conspiracy to

distribute cocaine. No such 404(b) evidence was presented in the Hawkins case.

United States v. Ramirez, 426 F.3d 1344 (11th Cir. 2005) is illustrative of

how 404(b) evidence may provide such a supportive function. In Ramirez, the

defendant was convicted of conspiracy to possess with intent to distribute cocaine

33 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 34 of 52

after being arrested by the United States Navy in a flagless, go-fast boat off the

coast of Colombia. Id. at 1348. On appeal, the defendant challenged the

admission of evidence related to his prior arrest, which occurred “in connection

with an incident involving a stranded, flagless, go-fast boat off the coast of

Colombia with four other crewmen and a substantial amount of cocaine floating in

the water.” Id. We rejected his argument that the 404(b) evidence was improperly

admitted: “Although the presence of [the defendant] and one of his codefendants in

the same place at the same time under similar circumstances in 2000 does not

conclusively establish that they met, the evidence makes such a meeting appear

more probable.” Id. at 1354. The 404(b) evidence was probative of the

defendant’s “criminal intent because it makes it appear more probable that he knew

of the object of the charged conspiracy.” Id. As we noted, “[t]he similarity of

circumstances in which [the defendant] found himself, apprehended off the

Colombian coast in a flagless, go-fast boat surrounded by large quantities of

cocaine is highly probative of his criminal intent.” Id. We further explained that a

“similarity between the other act and a charged offense will make the other offense

highly probative with regard to a defendant’s intent in the charged offense.” Id.

Here too, there is a “similarity of circumstances” between Perry’s earlier

involvement in a multi-year drug distribution scheme and Perry’s frequent

conversations with co-conspirators who were tied to crack cocaine or large sums of

34 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 35 of 52

cash. All of this evidence bore on Perry’s intent. It surely was not lost on the jury

that Perry had taken part, for a very extended period of time, in illegal drug

transactions involving the same controlled substances and in the same geographic

area. The jury could properly determine, in light of the 404(b) evidence, that Perry

did not accidentally happen to regularly speak and interact with the co-conspirators

involved in the extrinsic events, but was instead a knowing player.

In short, there was more than enough evidence here to convict Perry of the

charged crimes without consideration of any of the improper opinion testimony

taken from agent Lee. Perry argues nevertheless that agent Lee’s testimony “was

the only evidence the[ jury] had,” but this ignores the independent corpus of

evidence, which included the extensive raw audio tracks (and transcripts of those

recorded conversations) setting forth the nature and extent of the elaborate

narcotics conspiracy, the seizures of drugs and money from co-conspirators who

contemporaneously interacted with Perry and later discussed those seizures with

him, and Perry’s criminal history involving similar drug offenses. Further, under

our analysis in Emmanuel, we may consider agent Lee’s proper testimony --

including his translations of the coded language in the conversations -- which

provides substantial evidence of Perry’s involvement in the drug crimes.

Emmanuel, 565 F.3d at 1336. Indeed, Perry makes no argument that agent Lee

misapprehended the coded language repeatedly used in many phone calls and says

35 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 36 of 52

nothing at all about the explicit references in the taped conversations to “coke

jewel,” “powder,” and something “for the nose.” Thus, considering this entire

record, the jury could reasonably infer that the coded conversations involved illicit

drug agreements and that, beyond a reasonable doubt, Perry was guilty of the

various drug offenses.

Faced with this evidential foundation, Perry has done little to refute the

conclusion (as he must) that there is a reasonable probability that, absent agent

Lee’s challenged testimony, the outcome would have been different. In other

words, he has not convinced us that a substantial uncertainty exists, and, in any

event, “[u]ncertainty works against reversal.” United States v. Iriele, 977 F.3d

1155, 1177 (11th Cir. 2020). To put it simply, Perry must make “a specific

showing of prejudice,” Olano, 507 U.S. at 735, but he has failed to do so by not

addressing the entire corpus of evidence, much less explaining how the remaining

record evidence was somehow insufficient to convict him. Because Perry has not

met his “heavy” burden, he has not established plain error. See United States v.

Rodriguez, 627 F.3d 1372, 1382 (11th Cir. 2020).

Moreover, Perry has not met (as he must) the final condition of plain error

review, which requires a showing that the error seriously affected the fairness,

integrity, or public reputation of judicial proceedings such that we should exercise

our discretion to correct it. See Iriele, 977 F.3d at 1180; United States v.

36 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 37 of 52

Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018). This too is “a case-specific and

fact-intensive inquiry,” and may involve a determination of “the amount of

evidence incriminating the defendant, regardless of the error.” Hawkins, 934 F.3d

at 1267–68 (internal quotation omitted). Indeed, the purpose of this final element

“is to analyze whether a reasonable citizen would bear a rightly diminished view of

the judicial process and its integrity if the court refused to correct the alleged

error.” Id. at 1268 (cleaned up and internal quotation omitted).

We are not convinced that a reasonable citizen would be so disappointed

here. As we’ve detailed at length, there was sufficient evidence of Perry’s

knowing and willful involvement in a long-term drug conspiracy without any

reference to Lee’s improper testimony. See Emmanuel, 565 F.3d at 1336. It’s also

worth noting that Perry easily could have avoided his current predicament by

making specific objections to put the trial court on notice of any problematic

testimony, as one regularly does during a trial, and thereby afford the court an

opportunity to correct any error in a timely fashion. Instead, we find ourselves in a

situation where there was more than enough evidence to convict the defendant of

the charged drug conspiracy, yet the defendant asks us now -- at the tail end of a

long day -- to overturn his verdict by challenging some of the very evidence that he

passively listened to and that supported the already-fulsome record against him.

As we see it, the public’s view of the judicial process is served best in this case by

37 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 38 of 52

recognizing the strength of the evidence before us and upholding the jury’s verdict.

We do not encounter a defendant’s single malfeasance, misinterpreted signal, or

fabricated scheme. Rather, there are roughly 100 phone calls that demonstrate

Perry’s planning of and participation in a cocaine conspiracy that spanned several

years and involved many co-conspirators. All of this is to say that Perry’s

challenge to some of agent Lee’s testimony “has not undermined our confidence in

the outcome” of his trial, and we decline to exercise our discretion to recognize the

error in this case. Iriele, 977 F.3d at 1180; see also Olano, 507 U.S. at 736

(directing courts of appeal to exercise their discretion under the fourth condition of

plain error review when the challenged error represents a “miscarriage of justice”).

There was no miscarriage of justice in this case.

We do not reach this conclusion lightly. We recognize the dangers our

Court identified in Hawkins that can result from the admission of impermissible

opinion testimony, including that

it confers upon the agent an aura of special reliability and trustworthiness; that the agent could stray from applying reliable methodology and convey to the jury the witness’s sweeping conclusions about appellants’ activities; and that the jury could conflate the witness’s expert and fact witness testimony. And as noted in Emmanuel, such expert testimony may unfairly provide the government with an additional summation by having the expert interpret the evidence, and may come dangerously close to invading the province of the jury.

38 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 39 of 52

Hawkins, 934 F.3d at 1266 (internal quotation and citations omitted). We repeat

that the trial court must carefully perform its gatekeeping function in evaluating the

admissibility of an expert’s opinion testimony. We underscore, however, that it

remains the duty of litigators to object contemporaneously when offending

testimony is offered so that the trial court will have the opportunity to exercise its

critical gatekeeping function when it matters most. Plainly, Perry failed to do so in

this case and he has not satisfied the demanding burden inherent in plain error

review.

B.

Perry’s other arguments similarly do not warrant reversing his convictions.

Perry claims that the district court abused its discretion by admitting recordings of

cellular phone calls, which included out-of-court statements made by third parties

who were not called to testify at trial. When the government offered the tapes into

evidence, Perry’s counsel objected, only at the highest order of generality, that

some of the admitted calls involved “parties who are not here,” and that this

created a hearsay problem. The district court explained that the parties were

required to object when the conversations “specifically arise for presentation.”

Later in the trial, however, Perry only objected to the government’s

introduction of one phone call between Perry and Dexter Young on April 18, 2013,

when Young stated that “he’s having problems washing his dogs.” Agent Lee

39 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 40 of 52

interpreted this comment to mean that Young was having a problem converting

powder cocaine into crack cocaine. The government argued that the comment was

not hearsay because Perry participated in the conversation. The district court

agreed. Again, we review evidentiary rulings for abuse of discretion. United

States v. Joseph, 978 F.3d 1251, 1263 n.12 (11th Cir. 2020).

In United States v. Rivera, 780 F.3d 1084, 1087 (11th Cir. 2015), a

defendant challenged the admission of tape-recorded conversations between

himself and a third party. We rejected the challenge, explaining that the hearsay

rule “does not operate to exclude, wholesale, remarks made by another participant

to the conversation, merely because those remarks occurred outside the

courtroom.” Id. at 1092. If it did, “it would mean that, except for the criminal

defendant against whom the statements are being admitted, the voice of any other

participant to the taped conversation would have to be removed.” Id. at 1091. The

jury would hear “only a soliloquy by the defendant, with no knowledge of the

substance of any comments by others to whom the defendant was responding.” Id.

Unable to learn the context of a defendant’s comments would generally leave the

jury unable “to make much sense of a defendant’s statements.” Id.

Here, Perry concedes (as he must) that his own statements in the recordings

were admissible under Federal Rule of Evidence 801(d)(2)(A) as statements of a

party-opponent. And, just as in Rivera, we cannot say that Young’s statements

40 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 41 of 52

ought to have been removed. For one thing, the inclusion of Young’s statements

was necessary for the jury to fully understand Perry’s statements. Id. at 1092–93.

Put another way, Young’s statements did not amount to hearsay. “Generally, an

out-of-court statement admitted to show its effect on the hearer is not hearsay.” Id.

at 1092 (citing United States v. Cruz, 805 F.2d 1464, 1478 (11th Cir. 1986)).

“Likewise, out-of-court declarations that are more in the nature of an order or a

request and that, to a large degree, are not even capable of being true or false are

also not hearsay.” Id. (internal quotation omitted and alteration accepted). In the

call Perry objected to, Young made two requests for Perry’s assistance: “I was

going [to] ask ya . . . you know the dude I mean you know the people you be

getting to wash your dogs for you,” and “I was gonna see could uh could they do

one for me man cause I tried to wash one of them dogs last night man I couldn’t do

nothing with that dog man.” Young made two additional comments in the same

phone call about his difficulties “wash[ing] that dog.” These statements were

offered to show their effect on Perry, who told Young he would send help Young’s

way: “I’ll hit him and tell him to swing your way I’ll tell him to give you a call

know what I’m saying.” Without hearing Young’s side of the conversation,

Perry’s statements would have been rendered meaningless.

For the first time on appeal, Perry also objects to 50 additional conversations

that were received into evidence, including others that involved Young. Perry

41 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 42 of 52

claims that it was not necessary for defense counsel to make the same objection to

the remaining conversations because the court had already made its ruling about

one of them. We disagree. We repeat that Perry was required to raise specific

objections to specific questions and specific answers as they were offered, and, by

failing to do so, we are left to review the remainder of the phone calls only for

plain error. United States v. Melgen, 967 F.3d 1250, 1260 (11th Cir. 2020).

Moreover, even on appeal, Perry has lodged only a blanket objection to these calls,

again only arguing at the highest order of abstraction, and without showing how

the third-party statements were hearsay, how they may have affected his

substantial rights, or how all of this might have affected the fairness of his trial.

This does not establish plain error, and it remains his burden to do so. Among

other things, it is not at all apparent to us how these offered statements amounted

to hearsay or ultimately, how the outcome of the trial would have been different if

portions of these calls had been redacted. We can find no plain error in the

admissibility of the third-party statements in these intercepted phone calls.

Perry also argues that the district court erred by admitting under Rule 404(b)

any evidence of the factual circumstances surrounding Perry’s prior federal

conviction for conspiring to possess with intent to distribute cocaine. We review

the admission of 404(b) evidence for abuse of discretion. United States v. Green,

873 F.3d 846, 857 (11th Cir. 2017).

42 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 43 of 52

As we’ve seen, the proffered Rule 404(b) evidence against Perry arose from

a 2005 guilty plea entered in the federal district court in the Middle District of

Georgia. Perry admitted to conspiring to possess with intent to distribute cocaine

and stipulated that he had been involved in the distribution of crack and powder

cocaine in the Cairo, Georgia area from 1996 through 2004. The government

moved to introduce the underlying facts supporting this conviction in order to

establish Perry’s intent in this case. The district court concluded that the probative

value of the evidence was not outweighed by the danger of unfair prejudice. But in

order to limit any perceived prejudice, the court directed the parties to limit the

admitted statement.

Rule 404(b) provides that evidence of prior crimes, wrongs, or acts may be

admissible to prove “motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). We

have long employed a three-part test to determine admissibility. First, “the

evidence must be relevant to an issue other than the defendant’s character”;

second, “the act must be established by sufficient proof to permit a jury finding

that the defendant committed the extrinsic act”; and finally, “the probative value of

the evidence must not be substantially outweighed by its undue prejudice.” Holt,

777 F.3d at 1266 (quoting United States v. McNair, 605 F.3d 1152, 1203 (11th Cir.

43 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 44 of 52

2010)); see also United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).

Perry’s argument on appeal focuses exclusively on the third requirement.

As we have previously explained, “a not guilty plea in a drug conspiracy

case makes intent a material issue and opens the door to admission of prior drug-

related offenses as highly probative, and not overly prejudicial, evidence of a

defendant’s intent.” Holt, 777 F.3d at 1266 (quoting United States v. Smith, 741

F.3d 1211, 1225 (11th Cir. 2013)). Perry concedes as much, but then argues that

his case is different because of the quantity of drugs involved and the length of

time mentioned in the stipulation. However, Perry does not point to any case law

or offer any persuasive reason why these facts would be unduly prejudicial.

Indeed, the similarities between the facts surrounding the prior conviction and the

conspiracy charge in this case arguably make it highly probative. See Ramirez,

426 F.3d at 1354.

Perry also argues that the stipulation included “extraneous facts,” which

were not part of the government’s theory in this case. Thus, for example, the

stipulation informed the jury that Perry kept drug paraphernalia, such as baggies

and a scale, while no such paraphernalia was recovered from Perry in this case.

Perry says that this posed a risk of “undue confusion.” However, we cannot say

that the trial court abused its considerable discretion in concluding that the any risk

of undue prejudice outweighed the probative value of the evidence. Furthermore,

44 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 45 of 52

any risk of undue prejudice was reduced by the redaction of any reference in the

stipulation to Perry’s actual conviction or his guilty plea. Also removed from the

stipulation of facts was the observation that Eddie Lee Perry was an organizer,

leader, or supervisor of the criminal activities and that Perry’s co-conspirator and

co-defendant, Joseph Davenport, was also involved.

Finally, the district court gave the jury repeated limiting instructions about

the proper way to consider 404(b) evidence, which further reduced the risk of

undue prejudice. 11 See Ramirez, 426 F.3d at 1354. The court gave a limiting

instruction both before reading the stipulation and after. It also gave the jury a

limiting instruction at the close of the case. The court explained:

During the trial you heard evidence of acts allegedly done by the defendant on other occasions that may be similar to acts the defendant is currently charged with. You must not consider any such evidence to decide whether the defendant committed the acts charged now, but you may consider this evidence for other limited purposes.

If other evidence leads you to decide beyond a reasonable doubt that the defendant committed the charged acts, you may consider evidence of similar acts done on other occasions to decide whether the defendant had the . . . state of mind or intent necessary for the crime charged, acted according to a plan, or to prepare to commit a crime, or committed the charged acts by accident or mistake.

11 The jury heard this limiting instruction again when the government introduced the 404(b) evidence against Ragin. The district court acknowledged that the jury had heard the instruction before, explaining that “I don’t want to appear to be repetitive, members of the jury, but it’s important that you understand,” and went on to repeat the limiting instruction and explain the reasons behind it. We are confident that the jury was informed and understood how to properly consider the stipulation. 45 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 46 of 52

With respect to any evidence presented alleging a defendant committed other crime, wrongs, or acts on an occasion not charged in the indictment, you are instructed that to the extent, if any, you find such evidence -- rather, that you find such crimes, wrongs, or acts established by the evidence you may consider such other evidence only as to that defendant.

Perry does not argue that these instructions were inaccurate or insufficient in

any way, and they were not. We presume that jurors follow the instructions given

by the district court. United States v. Almanzar, 634 F.3d 1214, 1222 (11th Cir.

2011). On this record, the district court did not abuse its discretion admitting some

of the facts surrounding Perry’s prior drug conviction.

III.

Ragin raises two claims on appeal,12 neither of which warrant reversal.

First, Ragin argues that the district court should not have considered the drugs and

12 In Ragin’s opening brief, he also claims to adopt “the issues and arguments, and citations to the record of his co-defendants and co-appellants.” However, this statement is inadequate to adopt Perry’s arguments on appeal in this case. Eleventh Circuit rules provide that a party may adopt by reference any part of the brief of another party pursuant to Federal Rule of Civil Procedure 28(i) by “includ[ing] a statement describing in detail which briefs and which portions of those briefs are adopted.” 11th Cir. R. 28-1(f). Ragin’s blanket statement of adoption does not do so. Nor could it -- Ragin’s brief was filed in August 2017, almost two years before Perry’s brief. Moreover, Perry’s arguments on appeal -- concerning how the admission of agent Lee’s testimony, of telephone call transcripts, and of Perry’s Rule 404(b) evidence affected Perry’s convictions -- are all specific to Perry’s case on appeal, and we cannot resolve them without Ragin explaining how those issues would apply to him. See United States v. Khoury, 901 F.2d 948, 963 n.13 (11th Cir.), opinion modified on denial of reh’g, 910 F.2d 713 (11th Cir. 1990) (holding that one party cannot adopt the arguments of another party on appeal when the “the fact-specific nature of [the argument on appeal] requires independent briefing if we are to reach the merits”). Therefore, we construe Ragin’s brief as having addressed only those issues that he independently raised.

46 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 47 of 52

firearms found in his residence during his arrest on September 23, 2014, as

“relevant conduct” during sentencing. He claims that because his arrest fell

outside the timeline detailed in the indictment (which charged a conspiracy

beginning on or about January 1, 2010, and continuing until on or about December

31, 2013), and because the details of the arrest were admitted only as 404(b)

evidence at trial, the district court should not have taken it into consideration when

calculating his Guidelines sentencing range. The district court found Ragin had a

total offense level of 34, which included the drugs recovered from his home and a

two-level enhancement for possession of a firearm.

We review the district court’s factual findings about relevant conduct only

for clear error.13 United States v. Maddox, 803 F.3d 1215, 1220 (11th Cir. 2015).

“We will reverse only if we find that the district court clearly erred in considering

as part of the same course of conduct or part of a common scheme or plan as the

13 The government argues that the two aspects of the 404(b) evidence -- the drugs and the firearms -- must be reviewed separately because Ragin did not object to the district court’s application of the two-level enhancement for possessing dangerous weapons. At the sentencing hearing, Ragin objected to the district court’s consideration of “the drugs that were found at his house” as relevant conduct. Although Ragin did not object specifically to the firearms, the government brought them to the court’s attention, explaining: “[T]he firearms were located at the same time as these quantities of narcotics in September of 2014. So although nobody stated that specifically, I think that if the Court were to find that those contents of the residence were not properly to be considered, that might also impact the two points for the gun.” We review an “unpreserved error for plain error when the defendant has failed to preserve the issue by unambiguously flagging the mistake and contemporaneously objecting.” United States v. Margarita Garcia, 906 F.3d 1255, 1263 (11th Cir. 2018). Ragin’s objection to the evidence related to his 2014 arrest, and the government’s clarification that the guns were part of that evidence, mean the issue was “unambiguously flagg[ed]” for the district court to consider. Id. 47 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 48 of 52

count of conviction conduct which exists in discrete, identifiable units apart from

the offense of conviction.” United States v. Maxwell, 34 F.3d 1006, 1011 (11th

Cir. 1994) (internal quotation omitted).

At sentencing, the district court will calculate a defendant’s total offense

level by considering “all relevant conduct attributable to the defendant.” Maddox,

803 F.3d at 1221. Under section 1B1.3 of the Sentencing Guidelines, relevant

conduct includes “all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant” -- as well as

all “reasonably foreseeable” acts and omissions of others “in furtherance of”

jointly undertaken criminal activity -- “that were part of the same course of

conduct or common scheme or plan as the offense of conviction.” U.S.S.G. §

1B1.3(a)(1), (2); see also id. § 1B1.3, cmt. n.3. “For two or more offenses to

constitute part of a common scheme or plan, they must be substantially connected

to each other by at least one common factor, such as common victims, common

accomplices, common purpose, or similar modus operandi.” Id. § 1B1.3, cmt.

n.5(B)(i).

Moreover, the district court must consider whether “there are distinctive

similarities between the offense of conviction and the remote conduct that signal

that they are part of a single course of conduct rather than isolated, unrelated

events that happen only to be similar in kind.” United States v. Siegelman, 786

48 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 49 of 52

F.3d 1322, 1333 (11th Cir. 2015) (quoting United States v. Valladares, 544 F.3d

1257, 1268 (11th Cir. 2008)). Relevant conduct need not be included in the

indictment -- a district court may consider uncharged conduct if it finds that the

government proved the conduct by a preponderance of the evidence. See United

States v. Culver, 598 F.3d 740, 752 (11th Cir. 2010); United States v. Hamaker,

455 F.3d 1316, 1336 (11th Cir. 2006).

Here, the district court properly considered the drugs and firearms found at

Ragin’s residence during his arrest. At trial, the officer who searched Ragin’s

residence testified about the discovery of drugs and firearms. The district court

also admitted Ragin’s statement taken after his arrest that the drugs belonged to

Ross; that Ross paid him to keep them; and that he had been doing so for several

months. Ragin’s admission, which was properly admitted into evidence,14

established a common accomplice, Roger Ross, between the events underlying

Ragin’s conspiracy conviction and the drugs found during his arrest.

Further, the district court could find a common purpose between the events

surrounding the conspiracy and Ragin’s possession of the drugs and firearms. As

proven at trial, Ragin acted as a courier of drugs and money between co-

conspirators Ross and Perry. The district court did not clearly err in finding that

14 Ragin does not challenge the admission of the statement as 404(b) evidence at trial.

49 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 50 of 52

storing drugs and firearms for Ross more than nine months 15 after the end of the

charged conspiracy was part of “a single course of conduct” with the events

charged in the conspiracy. See Siegelman, 786 F.3d at 1333 (internal quotation

omitted). And as the district court pointed out, there was no evidence that the

conspiracy ended on December 31, 2013 -- the end of the charged period -- nor

that Ragin affirmatively withdrew from the conspiracy. As the government

explained at sentencing, December 2013 “was just the last date upon which [it] had

evidence at the time [it] went to the grand jury.” Because the district court found

that the drugs and firearms were part of a single course of conduct and were not an

isolated, unrelated event, it did not err when it concluded that they were relevant

for the purposes of determining Ragin’s proper Guidelines range.

Second, Ragin argues that the district court erred by not sua sponte granting

him a two-level minor-role reduction. Because Ragin did not raise this issue at

sentencing, we review it only for plain error. Margarita Garcia, 906 F.3d at 1263;

see also Rodriguez, 398 F.3d at 1298. Ragin bears the burden of establishing his

minor role in the offense by a preponderance of the evidence. United States v.

Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010). The Sentencing Guidelines

allow for an adjustment for “the role the defendant played in committing the

15 Ragin’s post-arrest statement said that he had “been keeping cocaine and heroin at [his] house for Roger Ross for about two or three months.” Therefore, the conduct arguably began even closer in time to the charged conspiracy. 50 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 51 of 52

offense.” U.S.S.G. Ch. 3, Pt. B, intro. cmt. A two-level downward adjustment is

warranted when “the defendant was a minor participant in any criminal activity.”

U.S.S.G. § 3B1.2. The commentary explains that the adjustment is available “for a

defendant who plays a part in committing the offense that makes him substantially

less culpable than the average participant in the criminal activity.” Id. cmt. n.3(A).

Although Ragin argues that he was merely a courier, that observation is not

dispositive in deciding whether he is entitled to a downward adjustment. In United

States v. Rodriguez De Varon, 175 F.3d 930, 940 (11th Cir. 1999) (en banc), we

instructed the district court to consider “first, the defendant’s role in the relevant

conduct for which [he] has been held accountable at sentencing, and, second, [his]

role as compared to that of other participants in [his] relevant conduct.” In

examining the first prong, we explained that “where the relevant conduct attributed

to a defendant is identical to [his] actual conduct, []he cannot prove that []he is

entitled to a minor role adjustment simply by pointing to some broader criminal

scheme in which []he was a minor participant but for which []he was not held

accountable.” Id. at 941.

That is exactly what Ragin asks us to do here. The district court calculated

Ragin’s sentence based on his actual conduct -- the cocaine he personally delivered

to Perry from Ross and the drugs he admitted to holding for Ross. The court

excluded from consideration any cocaine delivered by the other conspirators.

51 USCA11 Case: 16-11358 Date Filed: 09/29/2021 Page: 52 of 52

Although Ragin points to the broader criminal scheme between Perry and Ross and

the others, that alone is insufficient to justify a downward adjustment when the

district court determined his sentence by zeroing in on his actual conduct alone.

Nor is it clear that Ragin was “less culpable” than the average participant in this

conspiracy, given his role as a courier of drugs and money for Perry and Ross.

Ragin has not met his burden of establishing his minor role, nor that the district

court plainly erred by not sua sponte granting him a downward adjustment.

Accordingly, we AFFIRM Perry’s convictions and Ragin’s sentence.