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United States v. Gadson

United States Court of Appeals, Ninth Circuit

August 19, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ANTHONY GADSON, AKA Anthony Gadsen, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
WILLIE WILSON, Defendant-Appellant

Argued and Submitted August 13, 2013, Anchorage, Alaska

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Appeal from the United States District Court for the District of Alaska. D.C. No. 4:11-cr-00010-RRB-4, D.C. No. 4:11-cr-00010-RRB-2. Ralph R. Beistline, Chief District Judge, Presiding.

AFFIRMED.

SUMMARY[*]

Criminal Law

The panel affirmed (1) Anthony Gadson's conviction and sentence for conspiracy to distribute more than 500 grams of cocaine, possession with intent to distribute controlled substances, possession of firearms in furtherance of the conspiracy, and possession of controlled substances; and (2) Willie Wilson's conviction and sentence for the same offenses as well as for retaliation against a witness.

The panel held that the district court did not misinterpret the hearsay rules and did not abuse its discretion in declining to admit, as statements against interest under Fed.R.Evid. 804(b)(3), out-of-court statements by Gadson's brother. The panel held that the exclusion of the statements did not deprive Gadson of his constitutional right to present a defense.

The panel held that the district court did not abuse its discretion in admitting the government's dog sniff expert testimony without holding a Daubert hearing, where there was adequate evidence regarding the reliability of the dog's alert.

The panel held that the district court did not plainly err by failing to raise sua sponte the question of the authenticity of the recordings of prison phone calls made by Gadson and Wilson to third parties, and that the district court did not abuse its discretion in concluding that the government had carried its burden of making a prima facie case that the voices on the tapes were those of Gadson and Wilson.

The panel rejected Wilson's multiple arguments regarding the district court's admission of an officer's testimony regarding the recorded phone calls. The panel held that the district court did not plainly err in not considering sua sponte whether sufficient steps were taken to ensure the statements' accuracy, and that Wilson did not establish that the district court plainly erred in admitting the tapes on audibility grounds. The panel rejected Wilson's contention that the district court erred in allowing the officer to testify concerning the content of the telephone calls. Applying Fed.R.Evid. 701, the panel observed that a lay witness's opinion testimony necessarily draws on the witness's own understanding, including a wealth of personal information, experience, and education, that cannot be placed before the jury.

The panel held that the district court did not err in declining to strike a portion of the officer's testimony as impermissible vouching, or as an improper opinion on the ultimate issue of guilt or innocence under Fed.R.Evid. 704(b). The panel wrote that there is no basis for applying Rule 704(b) to a lay witness.

The panel held that the district court did not plainly err in formulating its jury instruction on Pinkerton liability, and that a rational jury could have concluded that it was reasonably foreseeable to Gadson that one of his co-conspirators would use a firearm in furtherance of the drug trafficking offenses.

Reviewing for plain error, the panel held that there was sufficient evidence to support Wilson's conviction under 18 U.S.C. § 1513(b)(2) for assaulting an informant with the intent to retaliate for providing information to the government. The panel explained that unlike with confessions to the police, corroboration is not required for Wilson's private statements, intercepted by the police, made to his cousin.

The panel held that the district court did not commit reversible error at sentencing in calculating the quantity of drugs attributable to Gadson, in applying to Gadson a managerial role enhancement pursuant to U.S.S.G. § 3B1.1(b), or in denying Wilson a minor role reduction pursuant to U.S.S.G. § 3B1.2.

Judge Berzon concurred and dissented. She concurred with the majority opinion except for the part concerning the officer's testimony as to the content of the defendants' recorded telephone conversations. She wrote that United States v. Freeman, 498 F.3d 893 (9th Cir. 2007), upon which the majority's holdings rest, goes much too far in allowing lay officer testimony concerning recorded conversations, and should be revisited en banc. Even accepting Freeman as binding precedent, she would hold the trial court plainly erred in admitting some of the officer's testimony and that the error was prejudicial.

John Balazs, Sacramento, California, for Defendant-Appellant Anthony Gadson.

Krista Hart, Sacramento, California, for Defendant-Appellant Willie Wilson.

Kirby A. Heller (argued), Mythili Raman, Acting Assistant Attorney General, Denis J. McInerney, Acting Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, Washington, D.C.; Karen L. Loeffler, United States Attorney, Elizabeth F. Crail, Special Assistant United States Attorney, Stephen Cooper, Assistant United States Attorney, Anchorage, Alaska, for Plaintiff-Appellee.

Before: Alex Kozinski, Chief Judge, and Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Ikuta; Concurrence and Dissent by Judge Berzon.

OPINION

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IKUTA, Circuit Judge:

Anthony Gadson and Willie Wilson appeal their convictions for conspiracy to distribute more than 500 grams of cocaine, possession with intent to distribute controlled substances, and possession of firearms in furtherance of their conspiracy and possession of controlled substances. Wilson also appeals his conviction for retaliation against a witness. On appeal, they challenge various evidentiary rulings, the correctness of certain jury instructions, the sufficiency of the evidence as to two counts, and sentencing determinations. We affirm the convictions.

I

During the period from March 2009 through February 2010, a residence at 5260 Fouts Avenue in Fairbanks, Alaska, was the hub of a drug trafficking operation. Two brothers, Brandon and Joshua Haynes, along with Donte Edwards, lived at the Fouts house.[1] Gadson, a brother of Brandon and Joshua Haynes, visited the house from time to time, though he lived in Anchorage. Wilson, a cousin of the Haynes brothers and Gadson, joined the group in November 2009. Joe Powell was also involved with the group and would sometimes complete transactions on behalf of Brandon Haynes.

According to testimony at trial, Joshua Haynes regularly sold crack cocaine at or near the Fouts house. Joshua made ten sales of cocaine to Joshua Voaklander during the spring and summer of 2009, half of which were witnessed by Gadson. During one of the transactions at which Gadson was present, Joshua displayed an assault rifle hidden under his couch cushions to Voaklander, which Joshua said was " for when somebody comes in through the front door."

One of the sources for the cocaine was a person with the code name " Transporter" who brought drugs up from Anchorage to the Fouts house in Fairbanks. On the two occasions that Gadson's trips to the Fouts house coincided with Transporter's trips, Gadson picked up bags containing $40,000 to $50,000 in cash from Brandon Haynes.

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At one point, Transporter was arrested for driving without a license, and Gadson complained that his arrest could have " messed everything up," meaning " everybody go to jail."

Officer Avery Thompson, a member of the Alaska Statewide Drug Enforcement Unit, began investigating this drug conspiracy in early 2010. By February 2010, he suspected that the Fouts house was at the center of a drug operation. A confidential informant working with the investigation executed two controlled buys of cocaine from Edwards, one of which took place in the driveway of the Fouts house. Following the buy, Officer Thompson and other members of the Fairbanks police department obtained a search warrant for the Fouts house. Although no one was in the house at the time of the search, they saw footprints in the new snow leading away from the open kitchen window. Subsequent investigation revealed that these footprints belonged to Wilson, and that when the police arrived, Wilson escaped out the window in his bare feet and scrambled over to a friend's house.

Inside, Officer Thompson and the other police investigators found a shoe box on top of the living room couch containing approximately a kilogram of cocaine, another shoe box containing another kilogram of cocaine and some $29,000 in cash behind the drugs. Gadson's fingerprints were identified on the second living room shoe box. A loaded shotgun and ballistic vests were found near the shoe boxes. Powder cocaine, crack cocaine, ecstasy, marijuana, drug paraphernalia, and more cash and money orders were found in various locations in the kitchen and dining room. The bedrooms contained more drugs. In one bedroom, the police found Wilson's possessions, including prescription pill bottles in Wilson's name and a ring with Wilson's initials. Inside that room, the officers found powder cocaine, crack, marijuana, heroin, 156 tabs of ecstasy, and approximately $13,000 in cash. A loaded handgun was nearby on the floor.

While the police were searching the Fouts house, Wilson had reached his friend's house, and informed Edwards (who was also at the friend's house) about the raid. Edwards and Wilson drove to Gadson's house in Anchorage and decided to stay there until things cooled off in Fairbanks. Brandon Haynes was also in Anchorage at the time. After about two weeks, Edwards returned to Fairbanks, and began buying drugs from Gadson for sale. But when Brandon Haynes returned to Fairbanks at the end of May, and resumed drug activities in a new location, Edwards switched back to Haynes as a supplier.

At some point in November 2010, the police used a confidential informant named Donny Pitka to make a controlled buy from Brandon Haynes. Pitka asked Brandon to deliver the drugs to undercover police in a vehicle near Brandon's new apartment on Adams Drive. Brandon had Powell deliver the cocaine, and the police arrested Powell when he approached the vehicle. The police then closed in on the Adams Drive apartment, arrested Brandon, and discovered cocaine, marijuana, ecstasy, oxycontin, and $14,000 in cash inside the apartment.

With Brandon Haynes in police custody, Edwards began buying again from Gadson. In January 2011, Gadson sold Edwards seven or more ounces of cocaine. By March 2011, Gadson moved up from Anchorage to 2805 Gillam Way in Fairbanks. On April 20, a federal grand jury indicted Gadson, Wilson, Brandon Haynes, Edwards, Powell, and others. Arrest warrants were issued for the defendants.

Officer Thompson picked up Gadson's trail at the end of April. After conducting

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several days of surveillance at Gadson's Gillam Way house and observing a good deal of " short-term traffic" indicative of drug dealing, he obtained a search warrant for the residence and garage. Officers executed the warrant at the beginning of May and found a ballistic vest and around $3,950 cash in the house. They discovered another $38,430 in a bag in the unlocked garage. The officers did not recover any firearms or an appreciable amount of cocaine from the Gillam Way house. Later that day, Gadson was arrested in his vehicle with another $1,300 on his person. Wilson turned himself in a few days later after learning of the outstanding warrant. Further investigation of the items obtained from the Gillam Way house suggested they had been used in drug transactions. A drug dog named Marley gave positive alerts for the presence of narcotics when presented with cash found at Gadson's house and on his person.

Following their arrests, Gadson, Edwards, Wilson, and Powell were all detained in the same wing of the Fairbanks Correctional Center. Pitka, who had been involved in the controlled buy that led to Brandon Haynes's arrest, was in the same prison on unrelated charges. After Powell learned about Pitka's role from his attorney, word spread to the other co-conspirators. In a series of recorded phone calls between Wilson and his cousin, Gabriella Haynes, Wilson discussed the police reports mentioning Pitka and told Gabriella Haynes that " the CI's here," using the standard abbreviation for a confidential informant. A few days later, Wilson told Gabriella that " [s]nitches can't go into the hallways." On May 21, soon after the call to Gabriella Haynes, Wilson assaulted Pitka as he was walking down the hallway. The assault lasted two minutes and was captured on video. Although the details of the fight are disputed, the video recording shows Wilson punching Pitka, who suffered a number of abrasions, scratches, and bites from the encounter. The day after the assault, Wilson called Gabriella Haynes again and told her that he hit " Donny," who had " started this shit," and referenced the earlier controlled buy between Pitka and Brandon Haynes.

On June 23, 2011, the government charged Gadson, Wilson, and others with five crimes: conspiracy to distribute, and possession with intent to distribute, more than 500 grams of cocaine and other controlled substances, in violation of 21 U.S.C. § § 846, 841(a)(1), (b)(1)(B), (b)(1)(C), (b)(1)(D) (Count 1); possession with intent to distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C), (b)(1)(D) (Count 2); possession of firearms in furtherance of Counts 1 and 2, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 3); and conspiracy to retaliate against a witness, in violation of 18 U.S.C. § 1513(e) (Count 5). The government also charged Wilson with attempting to kill a witness, in violation of 18 U.S.C. § 1513(a)(1)(B), (a)(2)(B) (Count 6), and retaliation against a witness, in violation of 18 U.S.C. § 1513(b)(2) (Count 7).

On October 11, 2011, a jury found Gadson and Wilson guilty of conspiracy to distribute, possession of drugs with intent to distribute, and possession of three firearms in furtherance of the conspiracy (Counts 1, 2 and 3). Wilson was also found guilty of retaliation against a witness (Count 7). Neither was found guilty of conspiring to retaliate against a witness (Count 5), and Wilson was acquitted of attempting to kill a witness (Count 6).

On December 29, 2011, Gadson received a below-Guidelines sentence of 300 months of imprisonment and eight years of supervised release. The court attributed 10,521,103 grams of drugs to Gadson on the basis of his involvement in the conspiracy,

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and the sentence included, among other things, a three-level enhancement for having a managerial role. On January 27, 2012, the court sentenced Wilson to 168 months of imprisonment and five years of supervised release, a sentence that also fell below the Guideline range. The court declined to give Wilson a minor role adjustment, noting that he had been entrusted to guard the drugs and cash in the Fouts house, and that he had sold drugs to Pitka and later assaulted him.

On appeal, Gadson and Wilson challenge certain of the district court's evidentiary rulings and jury instructions. They also contest the sufficiency of the evidence as to two counts. Finally, they challenge the district court's sentencing determinations. We consider each of these challenges in turn.

II

We begin by addressing Gadson and Wilson's challenges to the district court's evidentiary rulings. Where those challenges have been preserved, we review the district court's rulings for an abuse of discretion, and uphold them unless they are " illogical, implausible, or without support in inferences that may be drawn from the facts in the record." United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). We review de novo the district court's interpretations of the legal standard for its decision. United States v. Waters, 627 F.3d 345, 351-52 (9th Cir. 2010).

A

First, we consider Gadson's argument that the district court abused its discretion by not admitting certain out-of-court statements by his brother, Brandon Haynes.

In preparing for trial, Gadson learned that Brandon had made two statements to the police that were helpful to Gadson. Specifically, Brandon said that it was he who had put the $38,000 in cash into Gadson's garage at the Gillam Way house. Brandon also denied that he had given Gadson bags of $40,000 to $50,000, which contradicted Edwards's testimony that he had witnessed those transactions. In addition, Brandon told Wilson in a jail conversation that " [y]ou and I both know [Gadson] should not be in it," possibly referring to the case arising out of the drug operation at the Fouts house.

Gadson subpoenaed Brandon to testify at his trial, but Brandon invoked his Fifth Amendment right not to testify. At trial, Gadson moved to admit Brandon's statements under Rule 804(b)(3) of the Federal Rules of Evidence. The district court denied the motion, ruling that Brandon had given inconsistent testimony, and that this evidence was " so suspect" that " it would be a miscarriage of justice to permit it."

Gadson argues that the district court erroneously interpreted the hearsay rules and that the district court thereby abused its discretion in disallowing the evidence. According to Gadson, although Brandon's statements were hearsay, they were admissible as statements against interest under Rule 804(b)(3) of the Federal Rules of Evidence. Even if those statements did not qualify as statements against interest, Gadson contends that their exclusion robbed him of his constitutional right to present a complete defense.

Rule 804(b)(3) provides that out-of-court statements are not excluded by the rule against hearsay if the declarant is unavailable as a witness, and the statement (1) is " truly self-inculpatory," meaning it was " sufficiently against the declarant's penal interest that a reasonable person in the declarant's position would not have made the statement unless believing it to be true," Williamson v. United States,

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512 U.S. 594, 603-04, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (internal quotation marks omitted), and (2) " is supported by corroborating circumstances that clearly indicate its trustworthiness," Fed.R.Evid. 804(b)(3)(B).[2]

The district court did not misinterpret the hearsay rules and did not abuse its discretion in declining to admit Brandon's statements under Rule 804(b)(3). As an initial matter, the parties agree that Brandon was unavailable within the meaning of Rule 804(b) due to his invocation of his Fifth Amendment privilege against self-incrimination. Nevertheless, Brandon's statements that Gadson " should not be in it," and that Brandon had not given Gadson two bags of cash, are not " truly self-inculpatory" for purposes of Rule 804(b)(3)(A) because they do not expose Brandon himself to criminal liability. Statements that " curry favor or deflect (or share) blame" do not fall within the scope of Rule 804(b)(3)(A). Hernandez v. Small, 282 F.3d 1132, 1141 n.8 (9th Cir. 2002).

Further, while Brandon's statement that he was the person who had put money in the garage at the Gillam Way house might have been self-inculpatory, the district court could have reasonably concluded that it was not supported by corroborating circumstances indicating its trustworthiness. In general, the exculpatory statements of family members " are not considered to be highly reliable," LaGrand v. Stewart, 133 F.3d 1253, 1268 (9th Cir. 1998); see also United States v. Paguio, 114 F.3d 928, 933 (9th Cir. 1997), and therefore the close family relationship between Brandon and Gadson supports the district court's determination that Brandon's statements were not trustworthy. Further, the district court's determination that Brandon's testimony was " suspect" or unreliable was supported by testimony that he had made contradictory statements to the police and his co-conspirators.

Gadson argues that there was sufficient evidence corroborating Brandon's statement that he had put the $38,000 in the Gillam Way garage. Specifically, he cites the testimony from a downstairs tenant to the effect that someone named " Brandon" had previously lived in the apartment, and that the garage was usually unlocked. This slight evidence does not make the district court's decision to disallow Brandon's statement " illogical, implausible, or without support in inferences that may be drawn from facts in the record," Hinkson, 585 F.3d at 1251. Accordingly, the district court's decision not to admit the three statements at issue was not an abuse of discretion.

Nor did the exclusion of Brandon's statements deprive Gadson of his constitutional right to present a defense. The Supreme Court has held that " [a] defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions," and the exclusion of evidence is unconstitutional " only where it has infringed upon a weighty interest of

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the accused." United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). When the excluded evidence does not bear " persuasive assurances of trustworthiness" and is not " critical to the defense," Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004), its exclusion does not violate a defendant's due process rights, see United States v. Fowlie, 24 F.3d 1059, 1069 (9th Cir. 1994) (rejecting a due process challenge to evidence excluded under Fed.R.Evid. 804(b)(3) because the statement lacked any " significant indicia of reliability" and was " tangential at best" ); cf. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (holding unconstitutional an application of evidentiary rule that precluded the admission of a confession of guilt by a third party, where the testimony was directly exculpatory and bore " persuasive assurances of trustworthiness" ).

In this case, Brandon's three statements do not have any " persuasive assurances of trustworthiness" and do not constitute critical exculpatory evidence, such as " someone else's admissions of guilt." Fowlie, 24 F.3d at 1069. Given Brandon Haynes's unreliability and the substantial evidence establishing that Gadson was involved in the drug transactions at the Fouts and Gillam Way houses, exclusion of Brandon's three statements did not violate Gadson's due process rights.

B

We next turn to Gadson's argument that the district court erred in admitting the government's dog sniff expert testimony without holding a Daubert hearing.[3]

At trial, the government sought to introduce testimony from Investigator Joshua Moore, whose dog Marley gave positive alerts for the presence of narcotics when presented with several bundles of cash found at Gadson's house and on his person.

Before testifying to the jury, Investigator Moore testified extensively during voir dire about his experience and his dog's training and reliability in the field. Investigator Moore and Marley were certified as a K-9 team in June 2010. Investigator Moore testified that he had been a canine handler since May 2010 and had received four-and-a-half weeks of training. Marley had been trained by another officer to detect marijuana, heroin, cocaine, and methamphetamine. According to Investigator Moore, Marley had practiced in a variety of training scenarios to ensure that he was reliably detecting the presence of various odors rather than simply associating them with one specific set of circumstances. The police department logs showed that Marley had a reliability rating of 100 percent in the field and had made only one potential false positive alert. Investigator Moore also noted the limits to Marley's abilities: while he could detect the presence of four different drugs, he was unable to distinguish between individual drugs, and so an alert as to a pile of cash would indicate only that it had at some point been near one or more of those four drugs.

At the conclusion of the voir dire, the court ruled that Investigator Moore and Marley were " adequately trained and experienced to testify, to give an opinion that possibly could assist the jury in some way" and overruled Wilson's objection that the canine evidence was inadmissible without a Daubert hearing.

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On appeal, Gadson claims that dog sniff evidence is inherently unreliable and based on junk science. In making this argument, Gadson relies on various studies and reports indicating that dog sniff errors may be caused by handler cueing and errors, or may arise because drug dogs alert to residual odors and to compounds that are not unique to contraband. See, e.g., Richard E. Myers II, Detector Dogs and Probable Cause, 14 Geo. Mason L. Rev. 1, 14-16, 21-24 (2006); Lisa Lit, Julie B. Schweitzer, and Anita Oberbauer, Handler Beliefs Affect Scent Detection Dog Outcomes, 14 Animal Cognition 387 (2011). According to one expert cited by Gadson, a dog alert is insufficient to establish probable cause in a criminal case due to a high error rate. Myers, supra, at 14-16. In light of this evidence, Gadson argues that Investigator Moore's testimony was not enough to demonstrate reliability, and the district court should have conducted a full hearing (as opposed to a voir dire) on the reliability of the dog sniff evidence.

We review the district court's decision to admit expert testimony for abuse of discretion. Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002), as amended 319 F.3d 1073 (9th Cir. 2003), overruled in nonrelevant part by Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 467 (9th Cir. 2014) (en banc). Under Rule 702 of the Federal Rules of Evidence, " [a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion," provided the testimony meets certain criteria. Rule 702 also requires " the trial judge [to] ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Although the district court must perform a gatekeeping function, a trial court " not only has broad latitude in determining whether an expert's testimony is reliable, but also in deciding how to determine the testimony's reliability." Mukhtar, 299 F.3d at 1064. The inquiry into whether the testimony is sufficiently reliable is " a flexible one." United States v. Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000). A separate pretrial hearing on reliability is not required, and a voir dire procedure can be sufficient. Id. at 1102-05

The Supreme Court has largely disposed of Gadson's argument that dog sniff evidence is inherently unreliable. In Florida v. Harris, the Supreme Court held that the Florida Supreme Court erred by imposing an unnecessarily strict standard for evaluating whether the alert of a drug detection dog provided probable cause to search a vehicle. 133 S.Ct. 1050, 1056-57, 185 L.Ed.2d 61 (2013). According to Harris, a court can conclude that a " dog performs reliably in detecting drugs" based on the dog's training, test results, field history, and other case-specific facts. Id. at 1057-58. For example, " evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert," although a defendant must be given the " opportunity to challenge such evidence of a dog's reliability." Id. at 1057 . This conclusion disposes of Gadson's claim that dog sniff evidence is per se unreliable because it is based on " junk science."

Moreover, Harris did not suggest that a district court had to perform a full-fledged Daubert hearing to determine whether the dog sniff testimony was sufficiently reliable to establish probable cause. Id. at 1056-58. Rather, the Court held that both the state and the defendant can proffer

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evidence relating to the dog's reliability, and the court can " then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause." Id. at 1058. A district court considering whether evidence of a dog alert is admissible under Rule 702 can undertake a similar evaluation. Here, Gadson had ample opportunity to cross-examine Moore, " contest the adequacy of a certification or training program," or raise " circumstances surrounding a particular alert" that undercut Marley's reliability. Id. at 1057. This was sufficient to satisfy the district court's gatekeeping function, and the court did not abuse its discretion in declining to do more.

Given Harris 's determination that a dog's alert that meets certain reliability requirements may be sufficient to " make a reasonably prudent person think that a search would reveal contraband or evidence of a crime," id. at 1058, we conclude that a dog's alert that meets such requirements is also sufficiently reliable to be admissible under Rule 702. Under the standard enunciated in Harris, the evidence regarding the reliability of Marley's alert was more than adequate. Investigator Moore gave extensive testimony regarding his and Marley's training and certification. He also testified regarding Marley's reliability rating of 100 percent in the field. The defendants did not proffer evidence to the contrary. Accordingly, the district court did not abuse its discretion in admitting evidence of Marley's alert.

C

We now consider Wilson's claim that the district court erred by admitting the recordings of the prison phone calls made by Gadson and Wilson to third parties because the tapes had not been properly authenticated in violation of Rule 901 of the Federal Rules of Evidence. Wilson further claims that Officer Thompson's testimony was insufficient to support a finding that the voices on the tapes belonged to the defendants.

Because neither Gadson nor Wilson challenged the authentication of the tapes themselves at trial, we review this claim for plain error. See United States v. Lindsey, 634 F.3d 541, 550-51 (9th Cir. 2011). Plain error is " (1) error, (2) that is plain, (3) that affect[s] substantial rights," and " (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (alteration in original, internal citations and quotations marks omitted). Wilson did challenge the district court's decision that the government put forth sufficient evidence that the voices on the ...


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