118 F.3d 318 (5th Cir. 1997)
Norbert A. Griffith was convicted of conspiring to possess marijuana with intent to distribute following a DEA investigation into Kenneth J. McMillan.1 From February 14 to March 1, 1995, the DEA lawfully wiretapped two of McMillan's telephone lines and intercepted five conversations between McMillan and Griffith, three of which were played at trial.2 At trial, Special Agent Susan Nave identified the speakers in the wiretapped conversations and interpreted their cryptic dialogue for the jury, explaining that the conversations concerned available quantities, prices, and qualities of marijuana.3 This testimony was corroborated by Henry Richardson, a DEA intelligence analyst who testified as an expert witness for the prosecution.4
On March 1, 1995, DEA agents and local police executed a search warrant at the Griffith family home at 2852 Pritchard Road in Marrero, Louisiana.5 They found a green duffel bag containing forty clear plastic bags of marijuana weighing approximately 45 pounds in a bedroom closet along with men's clothing and a rifle.6 Griffith's wife, Roseanna, and his son, Scott, arrived home separately soon after the search.7 An agent asked Scott to page his father electronically, and Griffith arrived at the house in his red Ford pickup truck and was arrested.8 A search of the truck turned up a daily planner containing two marijuana cigarettes, a partially smoked marijuana cigarette on the driver's side floorboard, and a small address book containing the names and phone numbers of McMillan and another co-defendant.9
Griffith was indicted on a single count of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846.10 He was convicted on December 12, 1995, after a two-day jury trial and was sentenced on June 19, 1996, to a prison term of 30 months.11
During the prosecutor's rebuttal closing argument, after Griffith kept up a running commentary at the defense table, the prosecutor broke off her argument, turned to him, and asked whether he would like to take the stand and testify.12 The district court immediately admonished the jury to disregard the comment and gave curative instructions on the presumption of innocence and burden of proof but did not specifically instruct on the Fifth Amendment privilege against self-incrimination.13
At sentencing, the district court assigned Griffith a base offense level of 18 based on a finding that 20.43 kilograms of marijuana had been seized from the Pritchard Road house.14 The court increased his offense level by two based on a determination that he had possessed a dangerous weapon in connection with the offense.15 The court relied on a DEA lab report stating that the marijuana weighed 45.05 pounds.16 It also relied on information in the presentence investigation report that a loaded magazine had been seized from the house along with the rifle found next to the drugs.17
Whether the district court abused its discretion by permitting a DEA agent who was not formally qualified as an expert to give opinion testimony interpreting wiretapped conversations in drug-trafficking jargon?18
Drug traffickers' jargon is a specialized body of knowledge, familiar only to those wise in the ways of the drug trade, and therefore a fit subject for expert testimony.19 An experienced narcotics agent may testify about the significance of conduct or methods of operation to the drug distribution business, as such testimony is often helpful in assisting the trier of fact understand the evidence.20 District courts have broad discretion in determining whether to admit expert testimony, and such rulings are reviewed only for abuse of discretion.21 Even if an abuse occurs, the erroneous admission of expert testimony is subject to harmless error analysis under Federal Rule of Criminal Procedure 52(a).22
No. Special Agent Susan Nave identified the speakers in the wiretapped conversations and interpreted their cryptic dialogue for the jury, explaining that the conversations concerned available quantities, prices, and qualities of marijuana.23 This testimony was corroborated by Henry Richardson, a DEA intelligence analyst who testified as an expert witness for the prosecution. Although Nave was not formally proffered or qualified as an expert at the outset of her testimony, the district court questioned her about her experience as a drug investigator.24 The court repeatedly offered defense counsel the opportunity to traverse or cross-examine her as to her expertise.25
The established facts show that Nave was treated in substance as an expert whose opinions were based on her knowledge and experience.26 Any technical error in the timing or formality of her qualification was harmless.27 Her testimony was corroborated by the undisputed expert Richardson.28 The only plausible interpretation of the conversations was that Griffith and McMillan were discussing the purchase and sale in bulk of marijuana.29
The district court did not abuse its discretion by permitting Special Agent Nave to give opinion testimony interpreting the wiretapped conversations.30
Whether the district court erred by failing to specifically instruct the jury on the Fifth Amendment privilege against self-incrimination after the prosecutor commented on the defendant's failure to testify?31
The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.32 A prosecutor may not comment directly or indirectly on a defendant's failure to testify.33 When such a comment occurs, the district court must correct the error, and an explicit instruction on the Fifth Amendment privilege is required because instructions on the burden of proof and presumption of innocence are no substitute.34 Review of a forfeited claim that the court failed to give such an instruction is governed by the plain error standard of Federal Rule of Criminal Procedure 52(b).35 This standard requires the defendant to show that the error was plain and affected substantial rights.36
Yes. During the prosecutor's rebuttal closing argument, after Griffith kept up a running commentary at the defense table, the prosecutor broke off her argument, turned to him, and asked whether he would like to take the stand and testify.37 The district court immediately admonished the jury to disregard the comment and gave curative instructions on the presumption of innocence and burden of proof but did not specifically instruct on the Fifth Amendment privilege against self-incrimination. The record reflects that the jury was never instructed on the Fifth Amendment right to remain silent.38
The district court thus erred by failing to provide an explicit instruction on the privilege.39 The error was plain because the proper remedy for the prosecutor's improper comment should have been clear and obvious.40 Nevertheless, Griffith failed to establish that the error affected his substantial rights because the comment was isolated, the jury was instructed to disregard it, and the prosecution's evidence against Griffith was strong, including the tape-recorded conversations, the discovery of approximately 40 pounds of marijuana in his home, and the seizure of marijuana cigarettes from his truck.41
Although the district court erred by failing to specifically instruct the jury on the Fifth Amendment privilege, the error did not affect Griffith's substantial rights and therefore does not require reversal of the conviction.42
Whether the district court clearly erred in finding that 20.43 kilograms of marijuana had been seized from the defendant's residence when calculating the base offense level?43
Factual findings used in sentencing need only be supported by a preponderance of the evidence. We review challenges to such findings for clear error.44 Under the Sentencing Guidelines, the base offense level for a drug offense is determined by the quantity of drugs involved as set forth in the Drug Quantity Table.45
No. At sentencing, the district court assigned Griffith a base offense level of 18 based on a finding that 20.43 kilograms of marijuana had been seized from the Pritchard Road house.46 The court relied on a DEA lab report stating that the marijuana seized from Griffith's home weighed 45.05 pounds, the equivalent of 20.43 kilograms.47 Griffith claimed that the marijuana weighed less based on supposed testimony of 39 one-pound bags.48 The facts show that the agent testified to 45 pounds in 40 plastic bags and the lab report confirmed the higher weight.49
The district court did not clearly err in its finding that 20.43 kilograms of marijuana had been seized from the defendant's residence.50
The district court did not clearly err in finding that 20.43 kilograms of marijuana had been seized from the defendant's residence when calculating the base offense level.51
Whether the district court clearly erred in imposing a two-level sentencing enhancement for possession of a dangerous weapon in connection with the offense?52
The Sentencing Guidelines provide for a two-level enhancement if a dangerous weapon was possessed in connection with the offense unless it is clearly improbable that the weapon was connected with the offense.53 The government may satisfy its burden of proving a connection between the weapon and the offense by showing that the weapon was found in the same location where drugs were stored.54
No. The district court increased Griffith's offense level by two based on a determination that he had possessed a dangerous weapon in connection with the offense.55 The court relied on information in the presentence investigation report that a loaded magazine had been seized from the house along with the rifle found next to the drugs in the bedroom closet.56 The facts establish that the rifle was found in the same closet as the duffel bag containing the marijuana.57 Even assuming no ammunition was found, it is not clearly improbable that the weapon was connected with the offense, and the district court did not clearly err in applying the enhancement.58
The district court did not clearly err in imposing a two-level sentencing enhancement for possession of a dangerous weapon in connection with the offense.59