U.S. v. Freeman

• Decision Date: 11 June 2007
• Docket Number: No. 05-50401.,05-50401.
• Citation: 498 F.3d 893
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin FREEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

498 F.3d 893

UNITED STATES of America, Plaintiff-Appellee, v. Kevin FREEMAN, Defendant-Appellant.

No. 05-50401.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2006.

Filed June 11, 2007.

Amended August 20, 2007.

Myra D. Mossman (argued), Santa Barbara, CA, for the defendant-appellant.

Debra Wong Yang, United States Attorney, Thomas P. O'Brien, Assistant United States Attorney, Chief, Criminal Division, Mark A. Young, Assistant United States Attorney, Narcotics Section, Elana Artson (argued), Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CR-03-00072-DT.

Before: JOHN R. GIBSON,^* RAYMOND C. FISHER, and CONSUELO M. CALLAHAN, Circuit Judges.

ORDER

The opinion filed on June 11, 2007 is amended as follows:

On slip opinion page 7079, lines 5-6, replace with .

On slip opinion page 7079, lines 13-15, replace "ticket" signifies a drug price; "iggidy" refers to an ounce; "all gravy" and "straight" both signify> with "wiggity" signifies high-quality cocaine; "gravy" and "straight" both signify&gt

On slip opinion page 7088, line 29, delete .

On the final line of slip opinion page 7088, replace with .

With these amendments, the panel has voted to deny the petition for rehearing. Judges Fisher and Callahan have voted to deny the petition for rehearing en banc and Judge Gibson so recommends.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it. Fed. R.App. P. 35.

The petition for rehearing and petition for rehearing en banc, filed July 20, 2007, is DENIED. No further petitions for rehearing or for rehearing en banc may be filed.

OPINION

JOHN R. GIBSON, Senior Circuit Judge:

Kevin Freeman appeals from his conviction and sentence on one count of conspiracy to manufacture and distribute at least fifty grams of cocaine base and conspiracy to possess with intent to distribute at least five hundred grams of cocaine. Freeman argues that the district court erred in allowing the government's expert witness to testify regarding the meaning of encoded drug language and to testify as a lay witness. Although portions of the expert witness's testimony should have been excluded, we hold that the district court's error was harmless. Freeman's additional claims are without merit. We affirm.

I. Background

Kevin Freeman was the only defendant named in a three-count indictment. Count One charged him with conspiracy to manufacture and distribute at least fifty grams of cocaine base as well as conspiracy to possess with intent to distribute at least five hundred grams of cocaine in violation of 21 U.S.C. § 846. The other counts accused Freeman of manufacturing and distributing cocaine base.

The indictment alleged that as a part of the drug conspiracy, Freeman purchased cocaine from Corey Mitchell and Maurice Brown. Mitchell and Brown were part of an earlier twenty-three defendant indictment, and since that time Mitchell had been cooperating with investigators. Freeman allegedly converted the cocaine into cocaine base and returned the cocaine to Brown for distribution in the Venice, California area. The Drug Enforcement Administration (DEA) had been investigating Mitchell and Brown as part of the Corey Mitchell drug trafficking organization since January of 2001, and during their investigation they intercepted telephone calls between Freeman and Brown. The indictment detailed a series of these calls between Freeman and Brown that occurred in May and June of 2001 that, allegedly using coded language, arranged for various drug transactions between Freeman, Brown, and Mitchell.

The evidence offered by the government at Freeman's jury trial consisted in large part of testimony from Bob Shin, a detective for the Los Angeles Police Department who was working with the DEA as a federal task force officer at the time of the investigation. Detective Shin testified as to the meaning of allegedly coded words used by Freeman in the intercepted telephone calls to facilitate drug transactions. Although none of the telephone calls contained explicit references to cocaine, Shin testified that they concerned that subject. While some of Shin's testimony focused on interpreting words or phrases he was previously aware of, such as "iggidy" or "all gravy," other portions of Shin's testimony focused on interpreting both words that he was not familiar with before the investigation and entire conversations. Defense counsel objected to Shin's interpretive testimony as hearsay, speculation, and lacking foundation, an objection the court overruled.

The jury also heard testimony from Corey Mitchell. Mitchell testified that he had been a drug trafficker for approximately ten years and had been selling drugs to Freeman for approximately eight years. Mitchell testified that he originally sold Freeman cocaine base but that Freeman began purchasing powder cocaine sometime around 2000 because Freeman had learned to "cook" powder cocaine into crack cocaine. Mitchell described transactions involving Freeman cooking cocaine for the purpose of giving half back to Mitchell and Brown and keeping half to sell. Freeman also testified at trial. He admitted that while he and Brown were friends, the conversations recorded by investigators did not involve drug transactions, but rather the sale of stolen basketball tickets.

The jury deliberated for portions of two days before informing the district court that it was unable to reach a unanimous verdict. After learning that the jury had taken six ballots, the judge decided to give the jury the following instruction:

Members of the Jury, you have advised that you have been unable to agree upon a verdict in this case. I've decided to suggest a few thoughts to you.

As Jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscious [sic].

Each of you must decide the case for yourself. But, only after you consider the evidence impartially with your fellow Jurors. During your deliberations, you should not hesitate to re-examine your own views and change your opinion if you become persuaded that it is wrong.

However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow Jurors or for the mere purpose of returning a verdict.

All of you are equally honest and conscientious Jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.

I remind you that in your deliberations, you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one and ignore others. They are equally important.

You may now retire and continue your deliberations.

Two hours later, the jury returned verdicts of guilty on the first count of the indictment and not guilty on the second and third counts of the indictment.

The district court denied Freeman's motion for a new trial and sentenced him to a term of 240 months imprisonment, five years of supervised release, and a $100 special assessment. Freeman now brings the present appeal.

II. Agent Shin's Testimony

Freeman argues that the district court abused its discretion by allowing Shin to testify as to the meaning of coded drug language used in telephone conversations between Freeman, Mitchell, and Brown. Shin investigated the Corey Mitchell drug trafficking organization from February of 2001 until just before Freeman's arrest. He was one of only four prosecution witnesses, and his testimony spanned three of the four days during which the prosecution presented its case. Shin offered interpretations regarding the meaning of thirty-six recorded telephone calls. Several of the words he interpreted were part of the jargon commonly used by drug traffickers and were familiar to Shin before the investigation. For instance, he testified that "wiggity" signifies high-quality cocaine; "gravy" and "straight" both signify that the situation is good; "dove" refers to the number twenty; and the terms "bread," "cheese," and "chips" all refer to money.

Shin also interpreted a number of words that he was not familiar with before the investigation but, as he explained, are easily decoded based on a manner of speaking common to drug traffickers. Shin testified that Freeman, Brown, and Mitchell altered words by placing "e-z" or some variant thereof in the middle of words. He interpreted "fezone" to mean phone; "teznower" to mean tower; "fezo" to signify four and "fezi" to signify five; "deezove" to mean dove; "peezark" to mean park; and "reezey" to mean ready.

Shin also offered interpretations for drug jargon that he was not familiar with before the investigation, but was able to decipher on the basis of the investigation and his general experience with drug trafficking. For example, Shin explained on the basis of his knowledge of the street value of cocaine that "cuatro-cinco," which are the Spanish words for four and five, signified $450. "Piece," according to Shin, signified ounce, and it was a term that he was able to decipher based on the context of a conversation between Mitchell and Brown. Shin interpreted "diamond" to signify the ten ounces of crack that would be produced by cooking nine ounces of powder cocaine. In this instance, Brown helped to reveal the term's meaning by stating that he was going to "pull ten," and then correcting himself by stating that he would pull a "diamond." Shin explained that he was familiar with the process of converting powder cocaine into crack cocaine, and that with skill, an individual...