U.S. v. Dukagjini

Decision Date27 December 2002
Docket NumberDocket No. 00-1398(CON).,Docket No. 00-1476(XAP).,Docket No. 00-1392(L).
Citation326 F.3d 45
PartiesUNITED STATES of America, Appellee, v. Leon DUKAGJINI, Halit Shehu, Leonard George Miller, Jr., Keith John Miller, Warren Eugene Meeks, Jr., Leroy Thompson, III, Alvin Dwayne McDew, Michael Dexter, Sondra Jean Boone, Anthony Eugene McMillian, Raymond Fuller, Sonya Campbell, Rene Miller, James Robert Wilson and Roderick L. Smith, Defendants, Samuel Curtis Griffin, also known as Black Bart, also known as Blackie, and Alvin Leon McGee, also known as Al, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

Jeffrey Wicks, (Craig D. Chartier, on the brief), Bansbach, Zoghlin, Wicks & Wahl, P.C., Rochester, NY, for Defendant-Appellant Samuel Curtis Griffin.

Edward S. Zas, Appeals Bureau, Federal Defender Division, The Legal Aid Society, New York, NY, for Defendant-Appellant Alvin Leon McGee.

Christopher P. Tuite, Assistant United States Attorney, (Kathleen M. Mehltretter, United States Attorney, Western District of New York, on the brief), Rochester, NY, for Appellee.

Before: WALKER, Chief Judge, MESKILL, Circuit Judge, and KOELTL, District Judge.*

JOHN M. WALKER, JR., Chief Judge.

Defendants-appellants Samuel Griffin and Alvin McGee were convicted in 1999 following a jury trial in the United States District Court for the Western District of New York (David G. Larimer, Chief District Judge). Griffin was convicted of conspiracy to distribute heroin and cocaine in violation of 21 U.S.C. § 846 and McGee was convicted of conspiracy to distribute heroin pursuant to the same statute. Both were also convicted of using a telephone to commit a controlled substance felony in violation of 21 U.S.C. § 843(b).

Both Griffin and McGee argue that the district court improperly admitted expert testimony interpreting the meaning of telephone conversations recorded through legal wiretaps. Griffin also argues that the district court improperly admitted testimony about his possession of a handgun, that he received ineffective assistance of counsel, and that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Although we conclude that some of the expert testimony should have been excluded, the error was harmless. Griffin's additional claims are without merit. We affirm.

BACKGROUND

From approximately 1993 to 1996, Leonard Miller ran a large-scale operation selling heroin and, to a lesser extent, cocaine in Rochester, New York. Miller's heroin source was Leon Dukagjini (sometimes referred to as "Duke") in New York City.1 Miller then cut and packaged the heroin for street-level sales in Rochester. Among those who assisted Miller were his brother Keith Miller, Raymond Fuller, and Linda Fuller, each of whom pleaded guilty to participating in the heroin distribution conspiracy and testified for the government against Griffin and McGee. They each testified that Griffin was an important lieutenant in Leonard Miller's organization and that he played a key role in cutting, distributing, and selling heroin. Keith Miller also testified that Griffin was one of the people within the organization who knew how to cook powder cocaine into crack. The cooperating witnesses explained to the jury that McGee participated in cutting and bagging the heroin and primarily distributed Miller's heroin to street-level dealers, and that most of the bagging sessions took place in a house on Raeburn Avenue.

In addition to the cooperator's testimony, the government presented evidence from a search of the Raeburn Avenue house. The search, conducted pursuant to a search warrant, turned up crack and powder cocaine, cash, ammunition, and drug-distribution paraphernalia. The government also introduced recordings of drug-related conversations from lawful wiretaps on the telephones of Leonard Miller and Keith Miller. Some of the conversations included Griffin or McGee talking with other coconspirators. Other members of the conspiracy were caught on tape discussing narcotics transactions involving "Al" or "Sam."

On March 12, 1999, the jury convicted Griffin on all counts and convicted McGee of two counts and acquitted him of one. The court sentenced Griffin and McGee principally to prison terms of 121 months and 87 months, respectively. This appeal followed.

DISCUSSION
A. Biggs's Testimony

The principal issue on appeal is whether the testimony of Special Agent Richard Biggs of the Drug Enforcement Agency ("DEA")the case agent and also the government's expert on the use of code words in narcotics conversations — exceeded its proper bounds and therefore should have been excluded. Biggs became the case agent for the investigation in February 1997, after the wiretaps were concluded and the defendants had been arrested and arraigned. Biggs had monitored the wiretap interceptions in the case for about two months and prepared draft transcripts of those intercepts. As is common in drug conspiracy cases, most of the conversations on tape were disguised and ambiguous. The government called Biggs as an expert to testify about the meanings of the various code words used in the recorded conversations. The district court found that Biggs was qualified as an expert on the basis of his extensive experience in the area of narcotics trafficking as a police officer and a DEA agent, monitoring thousands of phone calls between suspected drug dealers.

The court cautioned the prosecutor to limit Biggs's testimony to "words of the trade, jargon," and general practices of drug dealers, rather than testimony offering "sweeping conclusions" and interpretations about the general meaning of conversations. Biggs testified at some length about the meanings of words used in the recorded conversations. He recited as the basis for his conclusions both his prior law enforcement experience and his "knowledge of the investigation" from the wire-tapped conversations and his personal conversations with the other agents, witnesses, and co-conspirators. Biggs testified about intercepted co-conspirator statements characterizing the quality or condition of the heroin and the significance that those statements would have within the drug trade. For example, Biggs explained that when Miller asked Griffin "is it dry," he was asking whether the heroin was too wet to sell. Prior to Biggs's testimony, the trial court had assumed that "dry" would refer to being out of drugs. At other points, Biggs testified that "cooked" and "tasted a little funny" were descriptions of crack cocaine. Biggs also testified that when McGee said "he definitely goin' to come through today, get all his B licks today," "B-licks" referred to heroin.

In addition to interpreting drug jargon, Biggs's testimony included explanations of numerous statements in intercepted conversations between the appellants and Leonard Miller, none of whom testified. At one point during his testimony, Biggs admitted that some of his conclusions were "based upon [his] background and training including [his] knowledge and involvement in this case." Indeed, many parts of Biggs's testimony appear to have been based primarily upon his familiarity with the specifics of the case, rather than his general expertise in the drug trade. For example, Biggs explained that when Leonard Miller said "the other one and the what you call `ems that they go in,'" Miller was "probably" referring to crack cocaine and its packaging materials, and in the same conversations, Miller's phrase "little packs" referred to "the small packages that drugs go into." Biggs also testified that Miller's statement to McGee, "just make sure you don't hit `em in his head when he see you don't give him nothing," was an instruction "not to supply any heroin to Big Dog." Elsewhere, Miller berated Griffin because "five mother fuckers tryin' to get in touch with you," which Biggs interpreted to mean that "[h]e has five customers that need to be supplied with cocaine or heroin." Biggs also testified that when Miller told Griffin, "Al going to give you six dollars and you going to give him ten," "six dollars refers to payment for previously supplied heroin, and Mr. Miller wants Mr. Griffin to give Mr. McGee another quantity of heroin, ten bundles." The defense objected to Biggs's testimony about the meaning of the taped conversations. The court overruled these objections, while also noting its concern that the testimony was straying from proper expertise about drug jargon.

McGee and Griffin challenge Biggs's testimony on several grounds. They argue first, that the testimony should have been excluded because the taped conversations were readily interpretable; second, that Biggs's testimony that certain conversations referred to specific drugs was impermissible; third, that Biggs's dual roles as case agent and as expert witness allowed him to serve as a summary witness, repeating and bolstering evidence previously received and thereby prejudicing the appellants; and fourth, that Biggs relied on inadmissible hearsay in violation of their Sixth Amendment confrontation rights. We will address each of these arguments in turn after briefly reviewing the general rules of evidence governing expert testimony.

B. The Rules for Expert Testimony

A district court's discretion to admit expert testimony is controlled by Rules 702, 703, and 403 of the Federal Rules of Evidence. As it existed during the appellants' trial in 1999, Rule 702 provided that an expert witness may testify "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."2 Fed.R.Evid. 702 (1999). Rule 703 stated that an expert witness may base opinions on otherwise inadmissible facts or data "of a type reasonably relied upon by experts in the particular field in forming...

To continue reading

Request your trial
297 cases
  • State v. Walker
    • United States
    • Connecticut Supreme Court
    • 13 Agosto 2019
    ... ... Dukagjini , 326 F.3d 45, 59 (2d Cir. 2003) (expert's opinion about interpretation of coded language in recorded conversations violated hearsay bar and ... ...
  • Corchado v. Rabideau
    • United States
    • U.S. District Court — Western District of New York
    • 19 Septiembre 2008
    ... ... She "had to call for other cars to come up there to assist us." R.21 ...          C. The Show-Up Procedure ...         When the officers arrived with Corchado in the patrol car, the show-up ... Dukagjini, 326 F.3d 45, 60 (2d Cir.2003) (citing Daye, 696 F.2d at 193; United States v. LaHue, 261 F.3d 993, 1009 (10th Cir.2001), cert. denied, 534 ... ...
  • State v. Tomlinson
    • United States
    • Connecticut Supreme Court
    • 8 Septiembre 2021
    ... ... The defendant's failure to brief the issue of harmfulness renders it unnecessary for us to review that claim. As to the defendant's constitutional claim, which he did not preserve at trial, on the record before this court, 340 Conn. 540 ... 834, 133 S. Ct. 124, 184 L. Ed. 2d 59 (2012) ; United States v. Mejia , 545 F.3d 179, 197 (2d Cir. 2008) ; United States v. Dukagjini , 326 F.3d 45, 58 (2d Cir. 2003), cert. denied sub nom. Griffin v. United States , 541 U.S. 1092, 124 S. Ct. 2832, 159 L. Ed. 2d 259 (2004) ; ... ...
  • State v. Berry
    • United States
    • New Jersey Superior Court — Appellate Division
    • 7 Marzo 2022
    ... ... The COVID-19 crisis reminds us that essential workers are not necessarily high-ranking ones. Our review of the record leads us to conclude that, even giving the State the benefit ... " Ibid. (quoting State v. Dukagjini , 326 F.3d 45, 55 (2d Cir. 2003) ). 471 N.J.Super. 124 The question of whether such expert testimony is permissible under N.J.R.E. 702 is left to ... ...
  • Request a trial to view additional results
9 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2015 Contents
    • 4 Agosto 2015
    ...Supp. 617, 620 (D. R.I. 1993), §§346A, 423.1.4 United States v. Dorsey, 45 F.2d 809 (1995 4th Cir.), §603.4.1 United States v. Dukagjini, 326 F. 3d 45, 57-59 (2d Cir. 2002), §603.7 United States v. Feliciano , 223 F.3d 102 (2d Cir. 2000), §603.7 United States v. Gabaldon, 389 F.3d 1090 (10t......
  • Commonly Used Experts
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2019 Contents
    • 4 Agosto 2019
    ...relied on for an expert opinion does not transform inadmissible matter into “independent proof” of any fact. United States v. Dukagjini, 326 F. 3d 45, 57-59 (2d Cir. 2002) noted that courts have consistently upheld the use of expert testimony to explain both the operations of drug dealers a......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2016 Contents
    • 4 Agosto 2016
    ...Supp. 617, 620 (D. R.I. 1993), §§346A, 423.1.4 United States v. Dorsey, 45 F.2d 809 (1995 4th Cir.), §603.4.1 United States v. Dukagjini, 326 F. 3d 45, 57-59 (2d Cir. 2002), §603.7 United States v. Feliciano , 223 F.3d 102 (2d Cir. 2000), §603.7 United States v. Gabaldon, 389 F.3d 1090 (10t......
  • Commonly Used Experts
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2017 Contents
    • 4 Agosto 2017
    ...relied on for an expert opinion does not transform inadmissible matter into “independent proof” of any fact. United States v. Dukagjini, 326 F. 3d 45, 57-59 (2d Cir. 2002) noted that courts have consistently upheld the use of expert testimony to explain both the operations of drug dealers a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT