United States of America v. Lateef Fisher

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4471
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LATEEF FISHER,
Defendant - Appellant.
No. 15-4550
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LATEEF FISHER,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:14-cr-00413-RDB-1)
Submitted: September 30, 2016 Decided: October 7, 2016
Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and DAVIS,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.
Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Evan T. Shea, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lateef Fisher appeals his conviction for conspiracy to
distribute and possess with intent to distribute heroin. On
appeal, he contends that the district court erred in denying his
motion to suppress evidence seized from a storage unit, in
permitting an agent of the Drug Enforcement Agency (DEA) to
testify regarding drug trade codes, and in instructing the jury
regarding the elements of conspiracy and drug quantity. Finding
no error, we affirm.
First, Fisher argues that the district court erroneously
denied his motion to suppress the cash and two guns seized from
the storage unit rented in the name of his girlfriend. He
posits that there was an insufficient basis to find that
evidence of criminal activity would be found in the storage unit
and, therefore, the warrant was invalid. Fisher also challenges
the district court’s conclusion that, even if the warrant was
invalid, the good faith exception of United States v. Leon, 468
U.S. 897 (1984) applied.*
In evaluating the denial of a suppression motion, this
court “review[s] the district court’s factual findings for clear
error and its legal conclusions de novo.” United States v.
* Because we conclude that the court did not err in
determining that the warrant was valid, the district court’s
alternate holding need not be addressed on appeal.

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Green, 740 F.3d 275, 277 (4th Cir. 2014); see United States v.
Span, 789 F.3d 320, 325 (4th Cir. 2015) (defining clear error).
The court “construe[s] the evidence in the light most favorable
to the government, as the prevailing party below.” Green, 740
F.3d at 277. We conclude that the evidence justly supported the
search warrant on the storage unit.
Fisher also challenges the district court’s qualification
of DEA Agent Edwards as an expert in drug trade code,
specifically the reliability of his methodology. Pursuant to
Rule 702,
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify
in the form of an opinion or otherwise if: (a) the
expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable
principles and methods; and (d) the expert has
reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702. We review the district court’s decision to
admit expert testimony under Rule 702 for abuse of discretion.
United States v. Wilson, 484 F.3d 267, 273 (4th Cir. 2007)
(citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152
(1999)). The district court must be granted “considerable
leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.”
Wilson, 484 F.3d at 273. If an expert seeks to be qualified on

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the basis of experience, the district court must require that he
“explain how his experience leads to the conclusion reached, why
his experience is a sufficient basis for the opinion, and how
his experience is reliably applied to the facts.” Id. at 274
(internal quotation marks and citation omitted).
In order to determine the reliability of an expert’s
methods, a district court should consider testing, peer review,
error rates, and acceptability in the relevant scientific
community. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 593-94 (1993). However, as the Court stated in
Daubert, the test of reliability is “flexible,” and Daubert’s
list of specific factors neither necessarily nor exclusively
applies to all experts or in every case. Kumho Tire Co., 526
U.S. at 141. In applying these principles, “the measure of
intellectual rigor will vary by the field of expertise and the
way of demonstrating expertise will also vary.” “[G]enuine
expertise may be based on experience or training.” Tyus v.
Urban Search Mgmt., 102 F.3d 256, 263 (7th Cir. 1996). The
Advisory Committee notes to Rule 702 specifically note that
“[i]n certain fields, experience is the predominant, if not the
sole, basis for a great deal of reliable expert testimony.”
Fed. R. Evid. 702, 2000 advisory committee note. Agent Edwards
met the requirements for testifying to the meaning of coded
language recorded from Fisher’s calls and texts, and adequately

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explained his methodology. The court carefully questioned
Edwards on his methodology and how it was applied. Accordingly,
there was no abuse of discretion in the district court’s
determination to accept Agent Edwards as a decoding expert. See
United States v. Garcia, 752 F.3d 382, 391 (4th Cir. 2014)
(approving methodology that identifies drug code by listening to
context of the intercepted call and identifying language that
does not otherwise make sense).
Finally, Fisher argues that the district court misstated
the law when it instructed the jury that drug quantity is not an
element of the offense in a curative instruction on conspiracy
and drug quantity elements. “We review the district court’s
jury instructions in their entirety and as part of the whole
trial, and focus on whether the district court adequately
instructed the jury regarding the elements of the offense and
the defendant’s defenses.” United States v. Wilson, 198 F.3d
467, 469 (4th Cir. 1999) (citation omitted). Fisher
acknowledges that his failure to object to the instruction
subjects this issue to plain error review. United States v.
Robinson, 627 F.3d 941, 953 (4th Cir. 2010). To establish plain
error, Fisher must show: (1) there was an error, (2) that was
plain, and (3) that affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732, 735-36 (1993). Further, we
will exercise our discretion and reverse a conviction based on a

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plain error only where the error “seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Id. at 732, 736 (brackets and internal quotation
marks omitted).
“The purpose of jury instructions is to instruct the jury
clearly regarding the law to be applied in the case.” United
States v. Lewis, 53 F.3d 29, 34 (4th Cir. 1995). We have
reviewed these instructions in the context of the overall
charge, and conclude that they fairly and accurately set forth
the controlling law. United States v. Woods, 710 F.3d 195, 207
(4th Cir. 2013) (this court considers the jury charge as a whole
to determine whether the instructions accurately stated the
statutory elements). Fisher has not demonstrated that in the
context of the overall charge, the challenged instructions did
not accurately set forth the applicable law. Therefore, no
plain error resulted.
Accordingly, we affirm the judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

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