U.S. v. Plunk

• Decision Date: 28 August 1998
• Docket Number: No. 96-30363,96-30363
• Parties: 98 Cal. Daily Op. Serv. 6726, 98 Daily Journal D.A.R. 11,939, 98 Daily Journal D.A.R. 9312 UNITED STATES of America, Plaintiff-Appellee, v. Gerald Frank PLUNK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1011

153 F.3d 1011

98 Cal. Daily Op. Serv. 6726, 98 Daily Journal

D.A.R. 11,939,

98 Daily Journal D.A.R. 9312

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Frank PLUNK, Defendant-Appellant.

No. 96-30363.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 2, 1998.

Decided Aug. 28, 1998.

Phillip Paul Weidner, Phillip Paul Weidner & Associates, Inc., Anchorage, Alaska, for the defendant-appellant.

Daniel S. Goodman, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CR-94-00036-JWS.

Before BROWNING, SKOPIL, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We review challenges to convictions and a sentence on various counts which arose out of a coast-to-coast cocaine smuggling conspiracy.

I

During the late 1970s and the 1980s, Gerald Frank Plunk was a relatively small-time cocaine dealer in Anchorage, Alaska. He was supplied throughout the 1980s by Barry Tendler, a pilot from Florida. Tendler, in turn, received his cocaine from a man named Michael. Michael was involved directly with Colombia's Cali Cartel, and had been entrusted with the responsibility of discovering a new way to smuggle cocaine into the United States. When told of Michael's charge, Plunk expressed his interest in participating. At Michael's behest, both Tendler and Plunk met him in Aruba in September 1992 to discuss possible smuggling arrangements. After a second Aruba rendezvous, Plunk was summoned to Colombia to meet personally with several high-ranking members of the Cali Cartel.

At the meeting in Colombia, Plunk was asked to coordinate the transportation of cocaine from Los Angeles and Houston to the New York City metropolitan area. He was placed in charge of a project that involved the cross-country transportation of cocaine in recreational vehicles. Plunk contacted and hired a number of drivers to move the cocaine across the country. Plunk's drivers successfully completed approximately eighteen drug runs, each of which resulted in the transportation of roughly 200 kilograms of cocaine.

Simultaneously with his motorhome project, Plunk and three of his co-conspirators coordinated the coast-to-coast transportation of cocaine inside produce trucks. The scheme entailed shipping the drugs inside vacuum-sealed bags, which were then placed inside crates of onions and other vegetables to avoid detection. Plunk successfully directed six or seven of these produce-truck hauls. On each occasion, the trucks carried between 200 and 250 kilograms of cocaine.

In December 1993, an independent narcotics investigation by New Jersey State Police uncovered $380,000 cash and a heat-sealing machine traceable to Plunk. A New York state court subsequently authorized a wiretap of several Colombians suspected of narcotics trafficking. Investigators concluded that the monitored telephone conversations suggested the existence of a large-scale conspiracy to transport cocaine across the United States. They also discovered that a number of calls were placed from a number registered to Plunk. During a monitored conversation on December 10, Plunk mentioned that Hal Booher--one of his drivers, who was attempting to deliver a shipment of cocaine to New Jersey--would be replacing his Alaska license plates with Pennsylvania tags. That same day, a federal district court in Alaska authorized a tap of Plunk's cellular telephone. The agents determined that Plunk had called Booher at a number in Carlisle, Pennsylvania. The next day, the agents stopped Booher in New Jersey and questioned him. Booher consented to a search of the motorhome, which revealed 220 kilograms of cocaine. Booher implicated Plunk as his employer.

A subsequent search of Plunk's Alaska residence uncovered additional incriminating evidence, including several firearms, a scale, and nearly $10,000 in cash. Plunk surrendered himself to Drug Enforcement Administration ("DEA") authorities, and was arrested on March 25, 1994. A month later, Plunk was indicted in federal court on ten separate drug-related counts: two counts of conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846; one count of maintaining a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848; four counts of using a communication facility in violation of 21 U.S.C. § 843(b); and three counts of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

A jury found Plunk guilty on one count of conspiracy, four counts of using a communication facility, and one count of possession with intent to distribute. It acquitted him on one count of possession with intent to distribute, and hung on one count of conspiracy, one count of CCE, and one count of possession with intent to distribute. Plunk was sentenced to life imprisonment.

Employing what might be described as a scatter-shot strategy, Plunk challenged his convictions and sentence on thirteen separate fronts. We address five of Plunk's claims in an unpublished disposition filed contemporaneously herewith. The balance of Plunk's arguments are as follows:

(1) the district court erred in permitting a veteran narcotics officer to testify as an expert regarding the meaning of certain code words and jargon used by Plunk and his co-conspirators in consummating drug transactions;

(2) the district court erred in denying his motion to suppress the fruits of an administrative subpoena;

(3) the district court erred in refusing to suppress voice and photographic identifications by a co-conspirator and a voice identification by a narcotics detective;

(4) the district court committed reversible error in refusing to grant a mistrial in the wake of a security officer's brief comment to a juror and the judge's secretary's decision to furnish the jury with a dictionary;

(5) the district court erred in allowing the jury to view transcripts of tape recorded conversations between Plunk and his co-conspirators during deliberations;

(6) the district court committed reversible error by administering an Allen charge;

(7) the government violated its obligations under Brady v. Maryland by failing to search for and to provide Plunk's counsel with handwritten notes allegedly contained in the files of the federal public defender; and

(8) the Double Jeopardy Clause barred the government from prosecuting him because it had previously conducted civil forfeiture proceedings against items of his property.

We have jurisdiction over Plunk's appeal pursuant to 28 U.S.C. § 1291. We address Plunk's contentions in turn.

II

During its case-in-chief, the government called Detective Jerry Speziale of the New York City Police Department to testify as an expert witness "in the field of narcotics trafficking, including wiretapping investigations, analysis of codes, words, and reference[s] used by narcotics traffickers." Speziale testified as to the general usage of cryptic terminology by drug dealers, and interpreted for the jury various encoded conversations between Plunk and his co-conspirators. On appeal, Plunk challenges the admission of Speziale's testimony under Federal Rules of Evidence 702, 704, and 403.

A

As a threshold matter, Plunk objects that Detective Speziale should not have been allowed to testify as an expert at all. Plunk contends that Detective Speziale's testimony was improperly admitted under the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), because it lacked the requisite "scientific basis." In Daubert, the Supreme Court concluded that Federal Rule of Evidence 702 ¹ had superseded the "general acceptance" test for novel scientific evidence, first articulated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The Daubert Court held that in order to be admissible under Rule 702, scientific evidence had to be "derived by the scientific method" and of some assistance to the factfinder in determining a fact in issue. See Daubert, 509 U.S. at 590-93, 113 S.Ct. 2786. The Court went on to suggest a few criteria to guide lower courts' decisions whether to admit scientific testimony: (1) whether the particular theory or technique could be tested (2) whether the theory or technique presented had been subjected to peer review; (3) whether the theory or technique had a relatively low rate of error; and (4) whether the theory or technique had gained general acceptance in the relevant scientific community. See id. at 593-94, 113 S.Ct. 2786.

Plunk maintains that Speziale's allegedly expert knowledge of narcotics code terminology does not meet the Daubert standard and is, consequently, inadmissible. The unarticulated premise of Plunk's argument, however--that Daubert analysis applies to testimony such as that offered by Speziale--is incorrect. It is settled in this circuit that "Daubert is confined to the evaluation of 'scientific' expert testimony." McKendall v. Crown Control Corp., 122 F.3d 803, 806 (9th Cir.1997). Consequently, because Speziale's testimony "constitutes specialized knowledge of law enforcement, not scientific knowledge, the Daubert standards for admission simply do not apply." United States v. Webb, 115 F.3d 711, 716 (9th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 429, 139 L.Ed.2d 329 (1997); accord United States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1997). ² Rather, courts evaluating the admissibility of "technical" or "specialized" knowledge such as Speziale's must conduct a more traditional Rule 702 analysis and determine, first, whether or not the content of the proposed opinion constitutes a proper subject of expert testimony (i.e., "technical[ ] or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue," Fed.R.Evid. 702), and second, whether or not the proposed witness...