United States v. Perry

14 F.4th 1253

UNITED STATES of America, Plaintiff - Appellee,

v.Eddie Lee PERRY, Chad Ragin, Defendants - Appellants.

No. 16-11358

United States Court of Appeals, Eleventh Circuit.

September 29, 2021

Lindsay Feinberg, Danial Edward Bennett, Michelle Lee Schieber, U.S. Attorney's Office, MACON, GA, Leah E. McEwen, U.S. Attorney's Office, ALBANY, GA, Angela Macdonald Miller, DOJ-Crt, WASHINGTON, DC, Michael J. Moore, Moore Hall, LLC, ATLANTA, GA, for Plaintiff - Appellee.

Laura D. Hogue, Hogue & Hogue, LLP, MACON, GA, for Defendant - Appellant EDDIE LEE PERRY.

Eddie Lee Perry, Pro Se.

Derek M. Wright, Derek M. Wright, LLC, ATLANTA, GA, for Defendant - Appellant CHAD RAGIN.

Chad Ragin, Pro Se.

Before GRANT and MARCUS, Circuit Judges, and AXON,^* District Judge.

MARCUS, Circuit Judge:

In 2014, Eddie Lee Perry and Chad Ragin along with seven other codefendants were indicted by a federal grand jury on numerous charges related to their involvement in a substantial multi-year, multi-state drug distribution organization operating primarily in southern Georgia. The core charge was that Perry, Ragin, and the others conspired to possess with intent to distribute in excess of five kilograms of cocaine and in excess of 280 grams of cocaine base. The charged conspiracy ran from January 2010 until the end of 2013. As part of an extended investigation, and with a series of court-ordered wiretaps in hand, the government intercepted thousands of cellular phone calls involving Perry, Ragin, and the other conspirators. Many of these conversations involved coded discussions about drugs. Some of the calls expressly referenced "coke jewel," "powder," and something "for the nose." During the trial, the government introduced 100 of the calls through the testimony of its case agent, DEA task force officer Kevin Lee. The government also presented testimony from sixteen other witnesses and introduced Rule 404(b) evidence of other crimes, wrongs, and acts against both Perry and Ragin. After seven days of trial, the jury convicted Perry and Ragin on all counts.

In this consolidated appeal, Perry presents multiple challenges to his convictions, while Ragin attacks his sentence on several grounds. Perry focuses primarily on agent Lee's testimony, arguing that the district court erroneously admitted it because Lee was not properly qualified as an expert, and that, in any event, the opinion testimony improperly blurred the line between expert and lay witness testimony and drew impermissible inferences for the jury. But after a thorough review of an extensive trial record, we are satisfied that Lee was properly qualified as an expert in interpreting code words for drugs, and that Perry has failed to establish that he was substantially prejudiced by any offending comments Lee offered. Similarly, we conclude that Ragin's challenges to his sentence are without merit. We affirm.

I.

In early 2013, Drug Enforcement Administration and local law enforcement agencies in southwest Georgia and Miami, Florida jointly began an extensive investigation involving a large cocaine distribution scheme. As part of this inquiry, between April and June 2013, the agents obtained three 30-day court-authorized interceptions of calls on a cell phone used by Perry. During this period, the agents intercepted thousands of calls, including many discussing drug production and sales. Information drawn from the Perry wiretaps led to court-authorized spinoff wiretaps, including one in December 2013, which focused on Roger Ross, who was Perry's source of cocaine.

Many of the calls ranged from discussions about cooking cocaine to setting up potential sales. Three calls from April 13, 2013 are illustrative. The day started with a call between Perry and Odell Cleveland (a named co-conspirator). Among other things, Perry told Cleveland that he had "that Lulu for your ass," using the code word "Lulu" for powder cocaine. Perry then called Joseph Davenport (also a named co-conspirator) and told him that they needed to meet. Shortly thereafter, Perry spoke to Ross, his Miami supplier, and said that the powder cocaine was "good" and "dropping dem draws quick." At trial, Kevin Lee -- who was the narcotics and vice commander of the Thomas County Sheriff's Office, a task force officer working with the DEA, and the chief investigator in this case -- testified that "dropping dem draws quick" meant it was "easy to convert [ ] from powder cocaine into crack cocaine." Ross then asked Perry if he wanted "some more" and Perry said yes. Perry also told Ross that "Ole Bro Bro he fixing to come get at me ... so Imma need." Agent Lee testified that "Ole Bro Bro" referred to Joseph Davenport (a named co-conspirator and co-defendant) and that Perry was telling Ross he would need more cocaine in the future. On the same call, Ross told Perry that he was going to "have nephew do that and ... hit ya up ... later on." Agent Lee offered that "nephew" referred to Ross's cousin¹ and courier, Chad Ragin, who would deliver more cocaine.

The intercepted telephone calls also led to the arrests of several coconspirators and the seizure of drugs and money. Thus, for example, on May 4, 2013, the wiretap surveillance team intercepted a phone call between Perry and Davenport. The two co-conspirators discussed their progress getting "one" from an unnamed man, which they could sell and charge "14 to make [ ] a dollar a piece." Agent Lee testified that the men were discussing buying one ounce of powder cocaine from Vert Washington (another co-conspirator) and selling it for $1,400, in order to make $100 each. On May 16, agent Lee received a call from an informant, who led Lee to a convenience store parking lot where Davenport and Washington were sitting in a vehicle. When agent Lee arrived, after obtaining consent to search, he found in the vehicle in plain view a cardboard tube containing three or four bags of cocaine. The next day, the team intercepted another call from Davenport to Perry. During the call, Davenport explained that he and Washington had been stopped by the police and that the police had found, and seized, cocaine -- specifically "[a]bout three halves and ... some powder" -- from the vehicle.

Later that month, the surveillance team intercepted telephone calls between Perry and Darnel Anderson.² In one call, on May 28, 2013, Anderson asked Perry to bring "two by here," which, agent Lee later explained, referred to two circles of crack cocaine. The next day, Anderson called Perry again and told him to "go ahead bring me another." The same day, the team received a tip that Perry would be making a drug delivery to an unknown buyer. Dewayne Pearson, an investigator with the Cairo, Georgia Police Department, set up surveillance near Perry's residence and followed him to a car wash, where Perry met with Anderson. Pearson saw the two men enter a building for roughly five minutes before walking back to Perry's truck. Perry reached for something inside his truck and then returned to the building with Anderson for a few more minutes. Perry left, and "just moments" later, police returned to the car wash with a warrant for Anderson's arrest. As Anderson fled the scene, a pursuing officer saw him throw a shoe box onto the roof of a nearby residence. When the box was recovered, the officer found over 95 grams of crack cocaine inside.

In December 2013, the team intercepted phone calls between Perry and Ross that discussed Perry's efforts to collect money he owed to Ross. During one of them, on December 16, 2013, Perry explained that "it's slow motion around here" and that he wasn't where he "need[ed] to be," which agent Lee told the jury meant that Perry hadn't collected enough money to repay Ross. Ross pushed back, offering that Perry was making Ross look "real, real, real shady right now," and that "this cat" was calling him "six or seven times, back to back, back to back, back to back." Agent Lee explained that Ross was "looking bad to his source of supply" because Ross couldn't pay. Perry responded that Ross should "just let him know everybody okay it's just slow."

The next day, the team intercepted a call between Ross and Ragin. This time, Ragin asked Ross if he'd spoken to Perry and the two discussed Ragin's plan to travel to Cairo, Georgia. Then, on December 21, Ross called Perry again, asking about the money Perry owed him. Perry told Ross that he had "a dub," or $20,000, as Lee explained it. Ross expressed disappointment with the amount, but said he had "to get whatever [he] can get ... right now." The next day, Ross called Perry to tell him that Ragin would be driving from Miami to Cairo in order to collect the money. During this call, Perry told Ross that he was placing tape around the cash and the sound of wrapping tape around the money could be heard on the phone call.

That day, December 22, law enforcement agents surveilled Perry's residence in Cairo, Georgia. They spotted Ragin's vehicle. On his way back to Florida, Ragin was pulled over for speeding while driving through southern Georgia. Officers discovered in the car a package wrapped in duct tape containing $18,870 in cash, and another $840 in cash on Ragin's person. Ragin followed the agents back to the station in his own car, but had the presence of mind to call Ross on the way, explaining that he (Ragin) had been stopped by the police and that he believed "they watching that boy[’s] house," or that the police were watching Perry's residence. Ross then called Perry in order to warn him to "keep [his] eyes open" and "look[ ] out" and described the cash seizure.

At the police station, Ragin told the agents that the cash was his, but that he earned the money by selling cars. The government later initiated forfeiture proceedings against the money, prompting Ragin to produce an affidavit from Nader Aweidh, who swore that he purchased a vehicle from Ragin for $20,000. However, the team intercepted a series of phone calls between Ross and Ragin discussing different...