United States v. Anthony Gadson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-30007 Plaintiff-Appellee, D.C. No. v. 4:11-cr-00010-

RRB-

ANTHONY GADSON, AKA Anthony Gadsen, Defendant-Appellant.

UNITED STATES OF AMERICA, No. 12-30047 Plaintiff-Appellee, D.C. No. v. 4:11-cr-00010-

RRB-

WILLIE WILSON,

Defendant-Appellant. OPINION

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

Argued and Submitted August 13, 2013—Anchorage, Alaska

Filed August 19, 2014

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 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…

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…

concurring and dissenting:

I concur in the majority opinion except for Part III(B), concerning Officer Avery Thompson’s testimony as to the content of the defendants’ recorded telephone calls. As to Part 111(B), the majority’s holdings rest on United States v. Freeman (Kevin Freeman), 498 F.3d 893 (9th Cir.2007). Kevin Freeman, in my view, goes much too far in allowing lay officer testimony concerning recorded conversations. Other circuits are considerably stricter than Kevin Freeman in this regard. In my view, the other circuits are correct, and Kevin Freeman is wrong. Kevin Freeman should be revisited by an en banc court, perhaps in this case.

Even accepting Kevin Freeman as binding precedent for the present, I dissent. I would hold the trial' court plainly erred under Kevin Freeman in admitting some of Officer Thompson’s testimony, and that the error was prejudicial.

I.

Defendants challenge Officer Thompson’s testimony under Federal Rule of Evidence 701, which allows a lay witness to offer an opinion only if it is (a) “rationally based on the witness’s perception,” (b) *1224 “helpful to clearly understanding the witness’s testimony or to determining a fact in issue,” and…