NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      AUG 23 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-30169

                 Plaintiff-Appellee,            D.C. No.
                                                3:13-cr-00079-RRB-6
 v.

ETIENNE Q. DEVOE, AKA Tien, AKA                 MEMORANDUM*
Tin,

                 Defendant-Appellant.

                    Appeal from the United States District Court
                             for the District of Alaska
                    Ralph R. Beistline, District Judge, Presiding

                      Argued and Submitted August 16, 2017
                               Anchorage, Alaska

Before: GRABER, CLIFTON, and M. SMITH, Circuit Judges.

      Defendant Etienne Q. Devoe appeals from the judgment following his jury

convictions for conspiracy to distribute controlled substances and conspiracy to

engage in money laundering. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

      1. We decline to overrule United States v. Freeman, 

(9th Cir.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
2007). As a three-judge panel, we lack authority to overrule circuit precedent

unless an intervening Supreme Court decision “undercut[s] the theory or reasoning

underlying the prior circuit precedent in such a way that the cases are clearly

irreconcilable.” Miller v. Gammie, 

, 900 (9th Cir. 2003) (en banc).

Devoe identifies no such authority.

      2. The district court did not plainly err by permitting Special Agent

Clementson to offer lay opinion testimony about the meaning of specialized drug

jargon. “[A]n officer’s interpretation of intercepted phone calls may meet Rule

701’s ‘perception’ requirement when it is an interpretation ‘of ambiguous

conversations based upon the officer’s direct knowledge of the investigation.’”

United States v. Gadson, 

, 1206 (9th Cir. 2014) (brackets omitted)

(quoting 

‒05). Here, Clementson laid an appropriate

foundation—he personally authored the wiretap affidavit, listened to hours of

recorded phone calls, and read all of the intercepted text messages. Given

Clementson’s direct participation in the investigation, he could permissibly

interpret “encoded drug jargon” and “vague or ambiguous statements.” 

, 902. That is precisely what he did when he interpreted “hit me,”

“mon,” “acct,” and “people been hittin me.”

      3. The district court did not plainly err by permitting Detective Dorr to offer

expert testimony about the meaning of specialized drug jargon. “Drug jargon is


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well established as an appropriate subject for expert testimony and investigating

officers may testify as drug jargon experts who interpret the meaning of code

words used in recorded calls.” United States v. Vera, 

, 1241 (9th

Cir. 2014). Here, Dorr interpreted encoded drug jargon, including the terms

“quarter” (a price or quantity of drugs), “play” (a discount), “deuce” (code word

meant to disguise the number 2), “change” (one version of a drug product as

opposed to another), “steppin’ it up” (increasing the volume of transactions), and

“where are you at on the count” (have you accumulated enough money to do the

next transaction). Dorr also permissibly interpreted “you ready yet,” “I’ll be ready

in a few days,” “I’ll just wait until, uh, you know,” and “so we both don’t be out

there,” because he explained how he applied his expertise regarding the “stepping

up concept” and the typical drug distribution and repayment model to reach his

interpretations. See 

(explaining, as an example, that “an agent may

permissibly apply his knowledge of the drug manufacturing process to interpret

words referring to that process”).

      4. The district court did not plainly err by failing to instruct the jury

regarding the difference between Dorr’s expert and lay opinion testimony because,

assuming there was error, Devoe has not shown that he was prejudiced. See

Molina-Martinez v. United States, 

, 1343 (2016) (explaining that

under plain error review, the proponent must show by “a reasonable probability


                                           3
that, but for the error, the outcome of the proceeding would have been different”

(internal quotation marks omitted)). In Vera, we summarized the concerns

underlying the dual role instruction: “[1] an agent’s status as an expert could lend

him unmerited credibility when testifying as a percipient witness, [2] cross-

examination might be inhibited, [3] jurors could be confused[,] and [4] the agent

might be more likely to stray from reliable methodology and rely on 

.

      Taking these in turn, if Dorr obtained unmerited credibility for his assertions

as a fact witness, Devoe benefitted from that development because he was asking

the questions on cross-examination, and presumably wanted the answers to be

accepted by the jury. Devoe’s cross-examination was not inhibited by his own

questions. Devoe’s counsel questioned Dorr freely. Continuing on, there was little

risk of juror confusion because Dorr did not oscillate back and forth between

expert and lay testimony. Instead, he offered expert testimony on direct, and then

testified as a percipient witness subsequently on cross-examination. Lastly, Devoe

identifies two exchanges during which he contends Dorr relied on hearsay, but

neither of his contentions is accurate.

      United States v. Torralba-Mendia, 

(9th Cir. 2015), reinforces

our conclusion that Devoe was not prejudiced by the court’s failure to instruct the

jury on dual capacity testimony. In Torralba-Mendia, we held that the failure to


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issue a dual role instruction did not affect the defendant’s substantial rights

because “the government bifurcated [the agent’s] testimony between his expert

testimony and percipient observations,” the agent “provided an adequate

foundation for most of his observations,” the evidence the agent relied upon was

given to the jury, and “a substantial amount of evidence, aside from [the agent’s]

testimony, connected [the defendant] to the conspiracy.” 

The same

is true here. Dorr’s testimony was bifurcated between direct and cross-

examination, it was apparent that Dorr’s lay witness observations derived from his

participation in the investigation, the phone calls and text messages were admitted

into evidence, and a substantial amount of evidence, other than Dorr’s testimony,

tied Devoe to the conspiracy, including Agent Clementson’s testimony.

      AFFIRMED.




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