Case: 12-15168        Date Filed: 09/22/2016      Page: 1 of 32



                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-15168
                               ________________________

                         D.C. Docket No. 1:11-cr-20635-RNS-1

UNITED STATES OF AMERICA,
                                                                          Plaintiff-Appellee,

                                           versus

ENRIQUE VINALES,
                                                                       Defendant-Appellant.
                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                           ON REMAND FROM THE
                       UNITED STATES SUPREME COURT
                              (September 22, 2016)

Before ANDERSON, Circuit Judge, and MOODY* and SCHLESINGER,**
District Judges.

PER CURIAM:
___________

*Honorable James S. Moody, Jr., United States District Judge for the Middle District of Florida,
sitting by designation.

**Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of
Florida, sitting by designation.
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      In this direct appeal, Enrique Vinales appeals his conviction and 204-month

sentence for three counts of conspiring to distribute heroin in violation of 21

U.S.C. §§ 841(a)(1) and 846; one count of conspiring to distribute 100 grams or

more of heroin in violation of 21 U.S.C. §§ 841(1)(a)(1) and 846; two counts of

distributing heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; one

count of possessing with intent to distribute heroin in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C. § 2; and being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Vinales argues that the district court erred by:

(1) admitting unlawfully obtained wiretap evidence and physical evidence – fruit

of the poisonous tree – subsequently seized from Vinales’ house pursuant to a

search warrant; (2) admitting improper opinion testimony in violation of the

Federal Rules of Evidence, the Fifth Amendment, and the Sixth Amendment; (3)

allowing the jury to convict Vinales on insufficient evidence to prove beyond a

reasonable doubt that he conspired to distribute heroin; (4) allowing the

government to make inflammatory arguments in violation of Vinales’ rights to due

process and a fair trial; and (5) allowing the jury to convict Vinales despite the

cumulative effect of many serious errors.

      On May 2, 2014, this Court issued its unpublished opinion in this case,

affirming his conviction and concluding that Vinales’ burglary convictions
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qualified as violent felonies under the ACCA’s residual clause. United States v.

Vinales, 564 F. App’x 518 (11th Cir. May 2, 2014). After we denied Appellant’s

motion for rehearing, he petitioned for certiorari with the United States Supreme

Court. The Court granted his petition, vacated this Court’s judgment, and

remanded for further consideration in light of Johnson v. United States, 576 U.S.

___, 

(2015). We ordered supplemental briefing from the parties.

In supplemental briefing, Vinales argues that his fleeing and eluding offenses as

well as his resisting an officer with violence no longer qualify as ACCA

predicates. He also argues that he is not eligible for the guidelines career offender

enhancement for the same reasons.1

                                       I. BACKGROUND

      During December 2010 and January 2011, a joint task force of federal and

state law enforcement had focused an investigation on the activities of codefendant

Michael Cooper, whom they had identified as a heroin distributor in the Overtown

area of Miami, Florida. In April and again in May 2011, an informant received

heroin from Cooper near Cooper’s apartment. At that time, the investigation

aimed to identify Cooper’s heroin source. Law enforcement obtained a wiretap for

Cooper’s phone and beginning in April 2011, over a period of 30 days, numerous


1
      Because our discussion of the challenge to the conviction in the original opinion was not
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incriminating calls and text messages between Cooper and Vinales were

intercepted, and Vinales was soon identified as one of Cooper’s main suppliers.

Many of these calls and text messages used code-words, and at trial, the District

Court permitted DEA Special Agent Edward J. Willett, III – the case agent

assigned to the investigation of Vinales – to interpret these coded conversations for

the jury.

       On June 3, 2011, while under police surveillance, a confidential informant

(“PeeWee”) purchased “six bundles” of heroin from Vinales. Inside each “bundle”

were 10 small baggies of heroin individually sized for personal use (a total of 60

personal-use baggies). The gross weight of the heroin was 39 grams. At trial, the

government introduced into evidence the undercover tape recording of this meeting

between PeeWee and Vinales.

       Between August 3 and 31, 2011, police intercepted Vinales’ cell phone

conversations via a wiretap. Through the wiretap, police intercepted

communications between Vinales and Co-defendant Maria “Mari” Audevert, who

lived across the street from Vinales’ Overtown home. Audevert assisted Vinales in

packaging heroin, and throughout the entire wiretap, police watched her transport

Vinales to and from narcotics deals. At trial, the government introduced into



affected by the remand, we reinstate and repeat it here in full.
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evidence intercepts of conversations between Vinales and Audevert. During a

conversation with Audevert on August 8, while she was shopping at Wal-Mart,

Vinales told her to buy a coffee grinder. He further specified that she should buy

“the regular one.” Agent Willett testified that grinders are used to convert chunks

of substance containing heroin into a fine powder for packaging and distribution.

During a call on August 23, Vinales and Audevert discussed how the police

stopped codefendant Darrell Edmond, whom police believed had just received

heroin from Vinales. On that same date, the police also stopped Audevert while

she was driving and accompanied by Vinales. The police found a small amount of

marijuana on Audevert and arrested her, but they found nothing on Vinales aside

from $558 in cash.

      After reviewing the telephone intercepts, police determined that Edmond

worked with Vinales packaging and distributing heroin. On August 4, 2011,

Vinales told Edmond during a phone call that he had “[j]ust enough to make for a

14” – a reference to 14 grams (half an ounce) of heroin. During an intercepted call

on August 9, 2011, Vinales confirmed with Edmond that Edmond had made “five

packs” – a reference explained to the jury to mean five separate lots of heroin that

each contained between two and five “bundles,” each of which were comprised of

10 individual baggies. Each bundle would sell for around $100. On August 10,

Vinales and Edmond discussed how Edmond had found it difficult to locate
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customers for the heroin he had purchased from Vinales. In August 2011, Edmond

also discussed his heroin distribution arrangement with codefendant Elliott

Hudson, specifically telling Hudson that Edmond “would be at [Vinales’] house

helping [Vinales] bag up, like, a quarter key or half key of heroin at a time.”

      Co-defendant Hudson pled guilty, under a plea agreement, to a count of the

superseding indictment that charged him with conspiring to distribute heroin with

Vinales. Hoping for leniency, Hudson testified against Vinales in Vinales’ trial.

Hudson had numerous prior felony convictions and a history of distributing

narcotics, and he described himself as “a career drug dealer.” Hudson testified that

back in 2000, he and Vinales entered into a business arrangement and he began

purchasing cocaine from Vinales. Hudson testified that sometime during June

2011, he asked Vinales whether Vinales had drugs that Hudson “could try to make

. . . some money off of.” Vinales said he had some “good heroin” that he was now

selling, and Vinales agreed to supply some of it to Hudson. Vinales volunteered to

visit a store owned by Hudson’s family members and give Hudson some heroin

samples for Hudson’s customers to try. The same day, Vinales met with Hudson

outside the store, arriving in a red vehicle driven by Audevert. Vinales gave

Hudson five or six sample baggies of heroin, each containing about 0.3 grams, so

that Hudson’s customers could determine its quality. Thereafter, Hudson began

purchasing heroin from Vinales to sell on the streets of Overtown.
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      At the time, Hudson was on work release and “had no money,” so he asked

whether Vinales would front him the heroin. Vinales agreed and began fronting

Hudson with 7 grams of heroin, known as a “vick” (because NFL quarterback

Michael Vick wears jersey number 7). Hudson sold the vick within about a week,

and after Hudson paid Vinales, Vinales would provide him with another vick.

Hudson paid Vinales $550 for each vick. After Hudson divided and sold the vick,

he “would make no less than $1,500.” Hudson enlisted the help of others to

distribute the heroin, and Vinales supplied Hudson with a vick of heroin on a

weekly basis. While dealing with Vinales, Hudson had a constant supply of heroin

because Vinales fronted it to him.

      Hudson identified his phone calls with Vinales that police had intercepted

and recorded. During these calls, the two discussed their drug distribution

arrangement. Hudson’s heroin orders to Vinales always took the form of 7-gram

vicks. On August 5, 2011, Hudson told Vinales during several phone calls and text

messages that his accomplices wanted a vick of heroin to distribute and were

waiting with him. After the calls, Vinales appeared with the drugs and Hudson

paid him $550 for the prior amount that Vinales had fronted to him and Hudson

had sold. The next day, Hudson arranged for Vinales to deliver another vick at the




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Hudson family store. Vinales appeared, fronted the drugs, and Hudson again paid

him $550 for the previous order.

      Likewise, on August 8, Hudson texted Vinales that Hudson’s uncle wanted

two vicks. Vinales agreed to a sale price of $1,000 for the double-order and

completed the transaction with Hudson in his family’s store. Later that day,

Vinales reappeared with another vick for Hudson to sell. Yet another vick

transaction was scheduled for the following day, but Hudson owed Vinales for a

vick that had been fronted. Hudson did not have the money because business had

been slow. Business remained slow on August 25, but Hudson assured Vinales

that he would soon have the money that he owed him.

      Hudson learned of Vinales’ arrest on August 31, 2011. He never paid

Vinales the money that he owed him. At trial, the government played a portion of

a taped call that took place between Vinales and co-defendant Audevert while

Vinales was in jail. The call concerned the money that Hudson owed. After this

call, Audevert visited Hudson and asked whether he had the money. Hudson did

not. Audevert asked Hudson a second time for the money, but he did not pay her.

      Co-defendant Kenya Macon pled guilty to one of the counts of the

superseding indictment and also testified as a government witness. Macon had

several prior convictions for selling drugs and hoped that his cooperation in

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Vinales’ trial would result in leniency. Macon, like some of the other co-

defendants, had known Vinales since junior high school. Macon made contact

with Vinales in February 2011, “[b]ecause [Vinales] knew where to get the good . .

. drugs from,” and he began selling heroin. They met in a park to discuss Macon’s

purchases of heroin from Vinales. Vinales offered to sell Macon a vick for

between $550 and $600, two vicks for between $1,100 and $1,200, and three vicks

for between $1,600 and $1,700. Vinales then began supplying Macon with heroin.

When they discussed quantities, they spoke in coded terms. For example, if

Macon wanted 21 grams of heroin, he would refer to meeting a friend “on 21st

Street,” and if he wanted 14 grams, he would instead indicate “14th Street.”

      Between February 2011 and Vinales’ arrest on August 31, 2011, Macon

typically ordered between 14 and 21 grams of heroin from Vinales once a week.

Macon then ground up the heroin and distributed it in little baggies. Vinales and

Audevert would arrive at a parking lot where Macon would be waiting. Macon

would sit in the back seat of the vehicle with Vinales and conduct the transaction.

Macon testified about a number of taped intercepts of his conversations with

Vinales. Macon expressed a preference for high-quality heroin, telling Vinales that

the better the quality the faster it would sell. On two or three occasions when

Macon did not have the money, Vinales fronted him the heroin.


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      On August 12, 2011, the informant “PeeWee” again met with Vinales,

resulting in a second controlled purchase of approximately 60 baggies of heroin

from Vinales. During this transaction, PeeWee asked Vinales, in coded terms,

whether he would be upset if Pee Wee were to sell the heroin to others. Vinales

responded that he would not, explaining that “[t]here’s enough . . . money in this

for all of us, Dog.” On August 25, in a third controlled purchase, PeeWee acquired

approximately 70 baggies of heroin from Vinales. The transactions occurred near

Vinales’ residence, and during the third undercover purchase, Vinales was seen

going into his home to retrieve the heroin that he then sold to the informant.

      On August 31, 2011, a Miami SWAT team and federal agents executed a

search warrant on Vinales’ home. From the home, they seized the following pieces

of physical evidence: a small .22 caliber pistol; a Glock pistol with loaded

magazines; a semi-automatic rifle with a magazine capable of holding 30 rounds;

ammunition of various calibers; roughly $4,000 in currency; a box containing

hundreds of small baggies contained within larger plastic bags; a razor blade

commonly used to package heroin and other narcotics; a plate with a sifter on it;

two digital scales; cutting agent; a heat sealer used by narcotics dealers to seal

plastic baggies containing heroin; and brown and black tar heroin with large plastic

bags containing multiple smaller baggies full of heroin. Officers seized heroin


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found in “packs” filled with small bags of heroin which, in turn, were assembled

into larger “bundles.” In sum, the police found two ounces of heroin—a quantity

worth over $4,000.

      After his arrest, Vinales was placed in the Miami Federal Detention Center,

where tape recordings were made of phone calls that he placed to Audevert and

Edmond. During a phone call with Audevert on September 20, 2011, Vinales told

her to direct Edmond to “send in some money.” On September 28, Vinales and

Edmond discussed what Hudson owed Vinales - $525, which corresponded to a

vick of heroin.

      Vinales proceeded to trial, and a jury convicted him on Counts 1, 9, 11, 13,

16, 19, 20, and 22 of the 23-count superseding indictment. After calculating a

guidelines range of 360 months to life imprisonment, the District Court departed

downward and imposed a total sentence of 204 months. Vinales then initiated this

appeal, attacking both his convictions and his sentence.

                            II. STANDARDS OF REVIEW

      A. Conviction

      A district court’s denial of a motion to suppress evidence is reviewed as a

mixed question of law and fact, with findings of fact reviewed for clear error and



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application of the law to those facts reviewed de novo. United States v. De La

Cruz Suarez, 

, 1213 (11th Cir. 2010).

      This Court reviews a district court’s decision to admit lay testimony under

Fed. R. Evid. 701 for a clear abuse of discretion. United States v. Myers, 

, 1576–77 (11th Cir. 1992).

      This Court reviews de novo whether the record contained sufficient evidence

to support the jury’s guilty verdict. United States v. Maxwell, 

, 1299

(11th Cir. 2009). Viewing the evidence in the light most favorable to the

government, this Court asks “whether there is substantial evidence to support the

verdict[].” United States v. Russo, 

, 1455 (11th Cir. 1986).

      Claims of prosecutorial misconduct are ordinarily reviewed de novo. United

States v. Eckhardt, 

, 947 (11th Cir. 2006). But when a defendant has

failed to assert a contemporaneous objection to the alleged misconduct, plain error

review applies. United States v. Newton, 

, 920 (11th Cir. 1995);

United States v. Hernandez, 

, 1573 (11th Cir. 1991). To establish

plain error, a defendant must show that there was an “(1) error, (2) that is plain and

(3) that affects substantial rights.” United States v. Turner, 

, 1276

(11th Cir. 2007) (internal quotation marks omitted). “If all three conditions are

met, an appellate court may then exercise its discretion to notice a forfeited error,

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but only if . . . the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” 

marks omitted). “An error is not

plain unless it is contrary to explicit statutory provisions or to on-point precedent in

this Court or the Supreme Court.” United States v. Schultz, 

, 1357

(11th Cir. 2009). In any event, this Court will not disturb a conviction based on a

prosecutor’s remarks unless those remarks are improper and prejudicial to the

defendant’s substantial rights. United States v. Schmitz, 

, 1267

(11th Cir. 2011). “[R]emarks prejudicially affect the substantial rights of the

defendant when they so infect[] the trial with unfairness as to make the resulting

conviction a denial of due process.” United States v. Eyster, 

, 1206

(11th Cir. 1991) (internal quotation marks omitted). The defendant bears the

burden of persuasion with respect to showing prejudice. United States v. Olano,

, 734 (1993).

       This Court reviews de novo whether cumulative errors have deprived the

defendant of a fair trial. “In addressing a claim of cumulative error, we must

examine the trial as a whole to determine whether the appellant was afforded a

fundamentally fair trial.” United States v. Calderon, 

, 1333 (11th

Cir. 1997).




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        B. Sentence

        This Court reviews de novo whether a defendant’s prior conviction qualifies

as a “violent felony” or “serious drug offense” under the Armed Career Criminal

Act. United States v. James, 

, 1153 (11th Cir. 2005). This Court

also reviews de novo a district court’s decision to classify a defendant as a career

offender pursuant to U.S.S.G. § 4B1.1. United States v. Whitson, 

,

1220 (11th Cir. 2010). However, challenges raised for the first time in a criminal

appeal are reviewed for plain error. See 

.

                                     III. DISCUSSION

        A. Conviction

        1. Wiretap Evidence & Evidence Subsequently Seized from Vinales’

House

        Vinales first argues that the district court erred in permitting the government

to introduce wiretap evidence and, as the tainted fruits therefrom, the physical

evidence obtained from his home. Vinales notes that a government application for

a wiretap must include “a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they reasonably appear

to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c).

Vinales argues that the government’s application for the wiretap of his cell phone
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failed to meet this requirement and was, therefore, unlawful, and so too were the

tainted fruits of the subsequent search of his home.

      In the Vinales wiretap affidavit, Special Agent Willett stated that the

purpose of the wiretap was to:

      (1) identify VINALES’s source of supply and work up the ladder to
      any bulk supplier and the individuals and organizations importing or
      transporting domestically the heroin into South Florida; (2) discover[]
      the full scope and identification of key personnel involved in illegal
      drug trafficking business of the VINALES DTO [“Drug Trafficking
      Organization”] and others; (3) discover[] the nature, extent, and
      methods of operation, including the financial aspects, storage and
      stash locations, and record keeping [of] VINALES DTO and others
      related to the VINALES DTO.


      Willett then affirmed that the following investigative techniques had been

employed but proved insufficient to achieve the aforementioned investigative

goals: (1) two informants (unlikely to reveal Vinales’ supply sources); (2) physical

surveillance (risk that targets would discover the surveillance and the investigation

would be compromised); (3) undercover agent (not trusted enough to be introduced

to higher level members of the organization – even accused of being a police

officer – and never established contact with Vinales); (4) consensually recorded

conversations (could only relate to buyer–seller relationship because informant

posed as a buyer); (5) search warrants executed on co-defendant Cooper (evidence

did not aid in identifying Vinales’ supply sources or storage locations); and (6)

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other investigative techniques, including interviews, grand jury subpoenas,

immunity offers, arrests, trash searches, pole cameras and tracking devices, pen

registers, mail cover requests, other wiretaps, and financial investigation.

      At the hearing on Vinales’ pretrial motion to suppress, it came to light that

around the time Special Agent Willett filed his affidavit requesting the Vinales

wiretap, other agents had been interviewing an incarcerated, cooperative individual

(“Rodriguez”), who had advised agents in another DEA group that he (Rodriguez)

had been one of Vinales’ suppliers prior to his (Rodriguez’s) arrest and that

Vinales stored drugs in his (Vinales’) home. This information had not been

included in the wiretap application. Even so, the district court concluded that the

government’s affidavit did not contain any material misrepresentations or

omissions. The court accepted Agent Willett’s testimony that he was unaware of

Rodriguez’s statements regarding Vinales when he submitted the wiretap

application. The court also found that even if Willett was or should have been

aware of Rodriguez’s statements, “that does not resolve the unanswered question

of whether Vinales had a new, or additional, supplier [after Rodriguez’s

incarceration] and if so, the identity of that person.” The court concluded that the

wiretap application “contained a full and complete statement explaining other

investigative procedures that had either been tried and had failed or that reasonably

appeared to be unlikely to succeed, or too dangerous, if tried.” Accordingly, the
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district court found that the wiretap application met § 2518’s necessity requirement

and did not taint the search of Vinales’ residence. Finally, the district court found

that the affidavit in support of the search warrant of Vinales’ residence was

sufficient even without reference to the wiretap evidence. The district court,

therefore, denied Vinales’ motion to suppress. Vinales contends that this was

error. To meet the “necessity” requirement of 18 U.S.C. § 2518, the government’s

wiretap application does not need to “show a comprehensive exhaustion of all

possible techniques, but must simply explain the retroactive or prospective failure

of several investigative techniques that reasonably suggest themselves.” United

States v. Van Horn, 

, 1496 (11th Cir. 1986). The statute does not

seek to “foreclose electronic surveillance until every other imaginable method of

investigation has been unsuccessfully attempted, but simply to inform the issuing

judge of the difficulties involved in the use of conventional techniques.” United

States v. Alonso, 

, 868 (11th Cir. 1984) (internal quotation marks

omitted). The statute does not require that wiretaps be used as a last resort. United

States v. Cifarelli, 

, 183 (5th Cir. 1979); United States v. Hyde, 

, 867 (5th Cir. 1978); see also Bonner v. City of Prichard, 

,

1207 (11th Cir. 1981) (en banc) (adopting as binding precedent all opinions issued

by the former Fifth Circuit prior to the close of business on September 30, 1981).

Rather, the statute merely ensures that wiretapping is not “routinely employed as

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the initial step in criminal investigation” or relied on when less intrusive and more

conventional techniques will succeed. United States v. Giordano, 

,

515 (1974); Van 

. In particular, the statute does not “permit

the government merely to characterize a case as a ‘drug conspiracy’ that is

therefore inherently difficult to investigate.” United States v. Carrazana, 

, 1565 (11th Cir. 1991) (internal quotation marks omitted).

      Vinales’ argument fails. Agent Willett’s wiretap application catalogued

numerous tried and failed investigative methods. The application also gave the

reasons those methods had failed – or would likely fail in the future – to identify

Vinales’ heroin source and all his accomplices. The application explained that

informants were unable to gain Vinales’ trust, and could only establish a buyer-

seller relationship – they were not positioned to learn about Vinales’ heroin source.

The pen register and trap-and-trace devices only provided the government with a

list of numbers called and would not establish the identities of all the persons

called or the contents of the conversations. And physical surveillance posed a risk

that Vinales would discover the investigation and render future efforts ineffective.

Finally, we have no basis to disturb the district court’s factual finding that, at the

time he filed the wiretap application, Willett was unaware of Rodriguez’s

statements to other DEA agents.


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      Because the wiretap was lawful, evidence obtained from it did not taint the

search warrant application for Vinales’ home. But even assuming that the wiretap

was unlawful, the search warrant application contained more than enough other

information to independently justify a finding of probable cause. The affidavit

observed that informants had made controlled purchases of heroin from Vinales,

and Vinales had even retrieved drugs from his home to make one of the deals.

Another individual had been stopped by police near Vinales’ home after buying

heroin from him, and Vinales had emerged from his home to make the deal.

Finally, an informant told Willett that Vinales and Audevert had been carrying

heroin when law enforcement stopped their vehicle on August 17, 2011, after they

had left Vinales’ home, and that Vinales had told the informant that police did not

discover the heroin because Audevert had concealed it in her vagina. These

observations independently established probable cause to believe that Vinales was

storing heroin in his home.

      2. Admission of Opinion Testimony

      The government’s case relied heavily on tape recordings, recorded calls, and

testimony by codefendants and informants. Much of the information that these

sources conveyed was encoded – numbers like “$10,” “$7,” 14, and 60, and terms

like “vick,” “grinder,” and “shit” were used. The district court allowed Agent


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Willett, over Vinales’ objections, to interpret this coded language throughout the

trial for the jury. Vinales contends that this violated Rule 701 of the Federal Rules

of Evidence, and the district court clearly abused its discretion, because Agent

Willett based his testimony on his generalized training and experience, rather than

perceptions gleaned from his investigation of this case, and Willett was never

noticed or qualified as a government witness. Vinales notes that the government

responded to defense objections by contending that Willett could testify “based on

his training and experience.” Vinales further notes that during cross examination,

Willett admitted that he based his opinions on his “expertise” and that he had been

testifying as an “expert.” This error affected Vinales’ substantial rights, he

contends, because Willett’s testimony was pervasive and foundational to the

government’s case against him. The government responds that it did not tout

Agent Willett as an expert; that was merely Vinales’ characterization on cross

examination.

      Rule 701 of the Federal Rules of Evidence allows a lay witness to offer

opinions or inferences if they are “(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a

fact in issue; and (c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.” Fed.R.Evid. 701. This third limitation

regarding “scientific, technical, or other specialized knowledge” was enacted as
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part of the amendments to Rule 701 in the year 2000, in an effort to prevent parties

from evading the heightened requirements of Rule 702 “through the simple

expedient of proffering an expert in lay witness clothing.” Fed.R.Evid. 701,

Advisory Comm. Notes (2000 Amendment). Since the amendment, this Court has

allowed police officers to give interpretations of code words in recorded

conversations when the meaning of those words was gleaned from their experience

and perceptions derived from the specific case under investigation. United States

v. Jayyousi, 

, 1104 (11th Cir. 2011) (allowing agent to testify about

meaning of code words that he learned by examining documents during a

prolonged investigation because he limited his opinions to things he learned from

the subject investigation); Tampa Bay Shipbuilding & Repair Co. v. Cedar

Shipping Co., 

, 1221–23 (11th Cir. 2003) (considering officer

testimony in criminal cases and holding that lay witnesses can testify “based on

their particularized knowledge garnered from years of experience within the

field”). Such interpretations cannot be given by a lay witness, however, when they

are based solely on the witness’ general expertise. 

–04.

      Agent Willett was not an expert witness in lay witness clothing. He was the

case agent in Vinales’ case and was the agent who applied for the wiretap and

search warrant. He had been in the wire room for the intercepts, and he had

listened to the recordings and authenticated them at trial. He had interacted with
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the informants and helped conduct surveillance. This Court cannot say that the

district court clearly abused its discretion in permitting Agent Willett’s interpretive

opinions unless this Court were to ignore Willett’s intimate level of involvement

with the investigation and instead parse the words of a few solitary responses to

defense objections and cross-examination questions. Willett did not opine, based

on his other investigative experiences, about the meaning of certain code words in

the drug trade generally. Rather, he testified that, from his experiences during this

particular investigation, he believed that when Vinales and other codefendants used

certain code words, those words meant certain things. In particular, Agent Willett

identified several code words that he believed referred to heroin based on his

perception that most of Vinales’ drug transactions involved heroin. This is

perfectly within the province of lay witness testimony under Rule 701. 

. To the extent that Willett partially relied on his experience as a

DEA agent to interpret the perceptions upon which he formed his opinions, Rule

701 accommodates the reality that police officers do not make perceptions in a

vacuum during criminal investigations. United States v. Novaton, 

,

1008 (11th Cir. 2001) (a witness does not have to be qualified as an expert simply

because his perceptions are based in part on his past experiences); cf. also Tampa

Bay Shipbuilding & Repair 

–23 (the post-2000 amendments



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to Rule 701 do not alter the Eleventh Circuit’s Rule 701 jurisprudence in cases

where police officers testify as lay witnesses in criminal cases).

      3. Sufficiency of the Evidence

      Vinales next argues that the evidence was insufficient to prove that he

conspired to distribute heroin and that, at most, the government only proved that he

had a buyer-seller relationship with the codefendants. This argument relates only

to the heroin distribution conspiracy counts (1 – conspiracy with Cooper, 9 –

conspiracy with Edmond and Audevert, 11 – conspiracy with Hudson, and 13 –

conspiracy with Macon) of the Superseding Indictment.

      Vinales correctly notes that to prove a conspiracy to distribute heroin, the

government needed to prove that he entered into an agreement with one or more

persons to distribute heroin; proof of a mere buyer-seller arrangement will not

suffice. United States v. Dekle, 

, 829 (11th Cir. 1999); United States

v. Mercer, 

, 1335 (11th Cir. 1999); United States v. Brazel, 

, 1136 (11th Cir. 1997). The government may prove the existence of an

agreement by either direct or circumstantial evidence, “such as inferences from the

conduct of the alleged participants.” United States v. Tamargo, 

, 889

(11th Cir. 1983) (internal quotation marks omitted). The government may prove




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knowledge by demonstrating “that the defendant knew the essential object of the

conspiracy.” United States v. Russell, 

, 1250 (11th Cir. 1983).

      Vinales is incorrect, however, in his assertion that the government only

presented buyer-seller evidence at trial. This Court has held that a conspiratorial

agreement to distribute—rather than merely to buy or sell—narcotics can be

inferred when evidence shows a continuing relationship that results in repeated

transfers of illegal drugs to the purchaser, United States v. Beasley, 

,

1560–61 (11th Cir. 1993); United States v. Thompson, 

, 1292 (11th

Cir. 2005), or when the quantity sold is sufficient for the seller to know that the

drugs he is supplying will be distributed to others, 

–36, or

when a supplier “fronts” drugs to purchasers, United States v. Burroughs, 

, 1581 (11th Cir. 1987). The jury had overwhelming evidence from which to

infer that Vinales agreed to provide large quantities of heroin to the co-defendants

on an ongoing basis with knowledge that they would distribute the heroin to others.

Vinales called Cooper regarding two separate orders of large quantities of heroin.

Vinales regularly fronted heroin to Hudson and Macon. Hudson testified that

Edmond admitted that he and Vinales would bag up substantial quantities of heroin

at a time at Vinales’ house. Evidence showed that Audevert helped Vinales

package heroin and frequently drove him to narcotics deals. Audevert also


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attempted – at Vinales’ request – to collect the $525 that Hudson owed Vinales for

fronted heroin.

      To the extent that Vinales has simply launched an attack on the credibility of

the government’s informant witnesses, he seeks to invade the province of the jury.

“So long as a reasonable jury could believe an informant’s testimony after hearing

relevant impeachment evidence regarding his or her reliability, the government

may rely on such testimony.” United States v. Richardson, 

, 1521

(11th Cir. 1985). The jury was entitled to credit Hudson’s and Macon’s testimony,

and Vinales’ argument to the contrary is meritless.

      4. Inflammatory Government Arguments

      Vinales next argues that during closing argument, the government

improperly suggested that he was guilty because other co-conspirators had pled

guilty, and improperly vouched for the credibility of its witnesses, in violation of

his rights to due process and a fair trial. The government responds that it did not

make any such argument, but merely made “fair reply” to Vinales’ arguments. The

government further contends that even if this Court were to assume that the

prosecutor made an improper argument, the district court removed any prejudicial

effect with its curative instruction that the guilty pleas of others could not be

considered as evidence of Vinales’ guilt.

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      During trial, Vinales elicited testimony from Agent Willett that charges

against one of the original codefendants were dropped and another codefendant

pled to a misdemeanor marijuana charge rather than the original heroin charges.

Vinales suggested that the pleas were the result of a sloppy investigation that had

led to charges unsupported by the evidence. On re-direct of Willett, the

government argued that Vinales had opened the door to a discussion of the charges

to which the codefendants had actually pled. Without any objection from Vinales,

the government elicited from Willett the charges to which Vinales’ codefendants

had pled guilty.

      In opening statement and closing argument, Vinales argued that the

government’s investigation in his case had become a “machine” that

indiscriminately worked to obtain convictions even without evidence, and that

agents simply wanted to be paid overtime without regard for the truth. Vinales

also argued during closing that Audevert was not guilty of heroin conspiracy (even

though she had pled guilty to the charge). Vinales also predictably attacked the

credibility of the government’s witnesses because they had received plea deals.

      The prosecutor responded to these assertions. First, he showed that Vinales

was inconsistent: he maintained that the investigation was a “machine” out to get

everyone regardless of guilt but at the same time showed that some original co-


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defendants had their charges dropped or dramatically reduced. The prosecutor also

pointed out that Audevert, Edmond, Hudson, Cooper, and Macon all pled guilty to

conspiracies to distribute heroin with Vinales, to rebut Vinales’ contention that the

investigation was an uncalculated dragnet. The prosecutor pointed to evidence of

Audevert’s participation in the conspiracy, also mentioning her guilty plea as

evidence of her guilt. Finally, the prosecutor asked the jury to consider why its

cooperating witnesses did not simply say Vinales had a gun on him during the drug

deals or that the conspiracy involved even more drugs over a longer period of time

if in fact they were lying, as Vinales suggested. Vinales contemporaneously

objected only to this last point.

      After these arguments were made, the district court instructed the jury that

plea bargaining may bear on a witness’ credibility, and also that “the fact that a

witness has pleaded guilty to an offense isn’t evidence of the guilt of any other

person.” Specifically, the court cautioned that “the fact that somebody in the same

conspiracy as Mr. Vinales pled guilty[] is not evidence of Mr. Vinales’ guilt in that

conspiracy.”

      A prosecutor’s argument violates the Constitution “if it renders the

defendant’s trial so fundamentally unfair as to deny him due process.” Davis v.

Zant, 

, 1545 (11th Cir. 1994) (internal quotation marks omitted). To


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meet this high bar, a defendant must show “a reasonable probability that, but for

the prosecutor’s statements, the result of the proceeding would have been

different.” Id.; see also United States v. Eckhardt, 

, 947 (11th Cir.

2006). This standard does not contemplate a line-by-line parsing of the

prosecutor’s words under a microscope, but rather a holistic analysis of “whether a

remark or a series of remarks, in the context of that trial, rendered the entire trial

unfair.” 

. To make this determination, this Court looks to

factors such as:

      1) the degree to which the challenged remarks have a tendency to
      mislead the jury and to prejudice the accused; 2) whether they are
      isolated or extensive; 3) whether they were deliberately or
      accidentally placed before the jury; and 4) the strength of the
      competent proof to establish the guilt of the accused.

the record contains sufficient independent evidence of guilt,

any error is harmless.” 

.

      “One person’s guilty plea or conviction may not be used as substantive

evidence of the guilt of another.” United States v. King, 

, 607 (5th

Cir. 1974). Furthermore, while a prosecutor can comment on a witness’

credibility, he cannot bolster that credibility by placing the prestige of the

government behind the witness or indicating that information not before the jury

supports the witness’ credibility. United States v. Knowles, 

, 1161

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(11th Cir. 1995). These rules do not, however, require a prosecutor to fight with

one hand while his opponent fights with two – he may make “fair response” to the

defendant’s arguments. United States v. Suggs, 

, 1539–40 (11th Cir.

1985); United States v. Hiett, 

, 1204 (5th Cir. 1978). Furthermore,

“when a district court gives a curative instruction, the reviewing court will reverse

only if the evidence is so highly prejudicial as to be incurable by the trial court’s

admonition.” United States v. Delgado, 

, 1347 (11th Cir. 2003)

(internal quotation marks omitted).

      Once again, the government has the better of the arguments. Viewed in

context, the prosecutor’s remarks were in fair reply to an argument on which

Vinales had chosen to hang his hat during closing argument and opening statement.

And even if the prosecutor’s arguments had crossed the line, no prejudice resulted.

The district court gave a curative instruction, and the prosecution presented

overwhelming evidence of Vinales’ guilt, as we have previously discussed.

      5. Cumulative Prejudicial Effect of Many Serious Errors

      As to his conviction, Vinales last argues that the cumulative prejudicial

effect of the errors he alleges was greater than the effect of the errors standing

alone and requires reversal. The cumulative error doctrine “provides that an

aggregation of non-reversible errors . . . can yield a denial of the constitutional

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right to a fair trial, which calls for reversal.” United States v. Baker, 

, 1223 (11th Cir. 2005) (internal quotation marks omitted). However, because

Vinales cannot demonstrate any errors, let alone multiple errors, this argument

fails.

         B. Sentence

         Vinales argues that two of his predicate felonies no longer qualify as violent

felonies under the ACCA. In Johnson, the Supreme Court held that the residual

clause of the ACCA is unconstitutionally vague. 576 U.S. at ___, 135 S. Ct. at

584.

         Vinales is correct that his two predicate felonies no longer qualify as violent

felonies under the residual clause. However, the Government argues that those

felonies qualify instead under the elements clause, 18 U.S.C. § 924(e)(2)(B)(i).

The district court did not reach this issue, relying as it did on the residual clause.

Vinales argues that the Government cannot now assert that the felonies fall under

the elements clause because it did not raise this argument below. However, a

review of the record shows that it was Vinales that framed the argument around the

residual clause. The PSI stated that the felonies qualified for the enhancement but

did not specify under which clause they fell. Vinales objected to the PSI and

argued that they did not fall under the residual clause; the Government responded

that they did and, at the time, it was correct under binding case law. The
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Government was not required to argue the other clause in order to preserve it for

future use. Because the district court did not address whether those convictions

were predicates under the elements clause, we remand that issue to the district

court to address and decide in the first instance. See United States v. Hill, 

(11th Cir. 2015).

      In his supplemental briefing, Vinales also argues that Johnson invalidates the

residual clause in the sentencing guidelines and that he must be resentenced

without any of the offense level increases or enhancements in the sentencing

guidelines, such as in the career offender guidelines in U.S.S.G. § 4B1.1, or in any

other guidelines. We disagree because this Court has already held that Johnson

does not invalidate the residual clause in the sentencing guidelines. See United

States v. Matchett, 

(11th Cir. 2015) (affirming the district court’s

imposition of an enhanced base offense level because the defendant’s Florida

burglary convictions were crimes of violence under the residual clause in the

career-offender guideline in U.S.S.G. § 4B1.2(a)(2)), reh’g en banc denied, 

(11th Cir. Sept. 13, 2016). In Matchett, this Court concluded that:

“By its terms, the decision of the Supreme Court in Johnson is limited to criminal

statutes that define elements of a crime or fix punishments.” 

(emphasis

added). The Matchett court explained that the ACCA “defines a crime and fixes a

sentence, but the advisory guidelines do neither.” 

The
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Matchett court concluded that “[t]he vagueness doctrine, which rests on a lack of

notice, does not apply to the advisory guidelines.” 

and

internal quotation marks omitted). Contrary to Vinales’ argument, nothing in

Johnson precludes the application of the offense level increases or enhancements in

the advisory sentencing guidelines.

      Because Vinales’ sentence was calculated under the ACCA residual clause

that has now been ruled unconstitutional, we remand to the district court for full

resentencing. The district court shall consider other clauses of the ACCA, as well

as the § 3553 factors.

      CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED

FOR RESENTENCING.




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