IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10361

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

REYNALDO MACEDO-FLORES, 

 Defendant - Appellant

Appeals from the United States District Court

for the Northern District of Texas

Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.

CARL E. STEWART, Chief Judge:

Reynaldo Macedo-Flores (Macedo) appeals his convictions for possession 

with intent to distribute 500 grams or more of cocaine and methamphetamines,

obstruction of justice, and two counts of perjury. He challenges the district 

court’s denial of his requested sentencing entrapment jury instruction, the 

sufficiency of the evidence regarding the materiality of his false statement 

supporting the perjury convictions, and the district court’s admission of a lead 

police investigator’s lay opinion testimony regarding Macedo’s use of certain 

coded words. We AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

June 3, 2015

Lyle W. Cayce

Clerk

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I.

In January 2012, FBI Special Agent Miguel Torres (Agent Torres) and 

Dallas Police Department Detective Byron Boston (Detective Boston) obtained 

information from a cooperating defendant in a related case identifying Macedo 

as an alternate source of supply for methamphetamine and cocaine. Detective 

Boston, working undercover, began buying drugs from Macedo in February 

2012. Detective Boston continued to purchase drugs from, and negotiate large 

drug purchases with, Macedo until July 16, 2013, when Macedo was arrested. 

Throughout the investigation, Detective Boston wore wire taps and relied on 

pole cameras, which recorded audio and video footage of many of the 

transactions between him and Macedo. After a few transactions with Macedo, 

Detective Boston indicated to Macedo that he wanted a half-kilogram of 

cocaine, and Macedo confirmed that he had access to that quantity and could 

deliver it. 

In January 2013, when Detective Boston was still unable to determine 

Macedo’s source for methamphetamine, he ordered four ounces of 

methamphetamine ice from Macedo in order to discuss a large cocaine order. 

Macedo told Detective Boston that his uncle had a “brick” of cocaine (1 

kilogram) for $31,000. Macedo also told Detective Boston that he had a 

customer from San Angelo who purchased 32 ounces of methamphetamine 

weekly, stating that he was selling “life” quantities, meaning he would get a 

substantial prison sentence if caught with the quantities he was distributing. 

Based on this conversation and other information from the investigation, 

Detective Boston was able to obtain a warrant to tap Macedo’s phone. 

Detective Boston continued to discuss transactions with Macedo, hoping 

their interactions would trigger conversations between Macedo and his 

supplier or suppliers. Detective Boston then inquired about purchasing a half-

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kilogram of cocaine, but Macedo refused and said he wanted to sell an entire 

kilogram. Investigators began listening to calls between Macedo and Jose 

Madrigal (Macedo’s supplier for methamphetamine) and heard references to 

“la doña” and “la señora,” the Spanish terms for “lady.” For example, Macedo 

directed Madrigal to “drop the sweets”—referring to methamphetamine—“over 

there with the lady.” In another call recorded on June 21, 2013, after Detective 

Boston had purchased methamphetamine from Macedo, Macedo told Madrigal 

that he wanted to take out $100 to give to “the lady,” and Madrigal approved. 

Based on the fact that Macedo’s mother had assisted in that transaction,1

Detective Boston believed Macedo was asking to compensate Macedo’s mother. 

During a transaction that occurred on April 24, 2013, Macedo instructed 

Detective Boston to retrieve the drugs from a particular residence.2 When 

Detective Boston arrived at the residence, a Hispanic female, who introduced 

herself as Berta, exited the rear of the residence. Detective Boston later 

learned that Berta (Austreberta Macedo) was Macedo’s mother. Macedo’s 

mother motioned for Detective Boston to remain quiet while they entered a 

shed at the rear of the residence, where she retrieved the methamphetamine 

ice from a cabinet drawer in the front portion of the shed. After receiving the 

drugs, Detective Boston conducted a field test to make sure the drugs were not 

fake, and Macedo’s mother counted the money given in payment. 

Macedo, Macedo’s mother, and eight other individuals were 

subsequently indicted for multiple drug-trafficking offenses. Macedo’s mother 

was tried individually in September 2013. During her trial, she called Macedo 

 

1 On April 24, 2013, Macedo negotiated the purchase of 4 ounces of methamphetamine 

with Detective Boston, but Macedo’s mother completed the transaction by retrieving the 

drugs out of a cabinet in a shed behind her house. 2 This transaction was captured on video. 

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as a witness. Macedo admitted to being a drug dealer “under pressure” but 

denied that his mother was a drug dealer. He said that she never conspired 

with him to sell drugs and denied that he had ever told her that the package 

she delivered to Detective Boston on April 24, 2013, contained drugs. Macedo 

testified that he told his mother that he needed her to deliver a package to a 

man and receive money from him. Macedo also testified that when he 

referenced “the lady” in the intercepted phone calls, he was not referring to his 

mother. Instead, he claimed that “la doña” and “la señora” were coded 

references to the house where his mother lived. Macedo also claimed that a 

reference to “la señora” in a different call—in which he informed Madrigal that 

“la señora” would be waiting for him—was a coded reference to a drawer or a 

box in the detached shed where Madrigal could leave the drugs. He admitted, 

however, that when he spoke to Madrigal about taking $100 for “the lady,” he 

was referring to his mother.

II.

Macedo was charged in a superseding indictment with one count of 

conspiracy to possess with intent to distribute more than 500 grams of cocaine, 

one count of conspiracy to possess with intent to distribute more than 500 

grams of methamphetamine, one count of obstruction of justice, and two counts 

of perjury. The obstruction of justice and two perjury counts arose out of 

Macedo’s testimony during his mother’s trial. The indictment alleged that “[i]t 

was a material matter to [her] trial to determine whether or not [Macedo’s 

mother] had knowingly participated in the conspiracy to distribute 

methamphetamine and aided and abetted the possession of methamphetamine 

with intent to distribute.” The first count of perjury alleged that Macedo 

testified falsely when he stated that he directed his mother to give him the 

proceeds of the April 24, 2013, drug sale, and he gave them to Madrigal. The 

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second count of perjury alleged that Macedo testified falsely when he claimed 

that, by using the terms “la doña” and “la señora,” he was referring to 

inanimate objects and not his mother. 

At Macedo’s trial, Detective Boston recounted the investigation into the 

drug conspiracy and the several transactions he participated in as part of that 

investigation. During direct examination, Detective Boston explained that a 

primary goal of the investigation was to identify the highest-level sources 

possible. On cross-examination, Macedo’s attorney inquired about when 

investigators learned about Macedo’s direct sources and when they developed 

sufficient evidence to bring a case against him. He also questioned Detective 

Boston to point out that Detective Boston set the quantities transacted. 

Detective Boston then confirmed that, although he believed that he had 

reached the highest source on the cocaine side of the investigation on July 2, 

2013, he contacted Macedo another time to purchase cocaine. However, 

Detective Boston also testified that he continued transacting cocaine purchases 

from Macedo because although he had found one source, he had learned that 

Macedo had another source of supply for cocaine when his uncle, one of 

Macedo’s cocaine suppliers, had none for sale. 

The Government introduced several intercepted phone calls, and Agent 

Torres, the supervisor of the entire investigation, noted that Macedo referred 

to his mother as “la doña” or “la señora,” Spanish terms that typically mean an 

older, respected woman. Macedo objected on the basis of “speculation” when 

Agent Torres asked how he knew the term “la doña” was not code for something 

other than a woman. The court conditionally overruled the objection, and 

Agent Torres explained that, based on the information learned during the 

investigation, he believed Macedo was referring to his mother. When asked to 

explain his understanding of what Macedo meant when he asked Madrigal to 

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take out $100 to give to “the lady,” Agent Torres explained that he believed 

Macedo was talking about giving money to his mother. This explanation was 

also made over a speculation objection. 

Agent Torres also testified about recorded conversations between 

Macedo and his sister, Reyna, while Macedo was in pretrial detention. Reyna 

implored Macedo to do whatever he could to help their mother and to “make 

your statements” to help her. She told Macedo that “[y]ou have to say that it’s 

all yours.” 

Jose Madrigal also testified at Macedo’s trial. Among other things, 

Madrigal confirmed that he delivered the methamphetamine for the April 24, 

2013, sale to Macedo’s mother and picked up the proceeds from her. He also 

listened to recorded calls and testified that he understood Macedo to be 

referring to his mother when he used the terms “la doña” or “la señora.” 

Madrigal also confirmed that he understood Macedo to be talking about his 

mother when he asked whether he could take $100 from the drug proceeds.

Prior to trial, Macedo requested that the jury be instructed on 

“sentencing entrapment.” He sought the following instruction:

Defendant Reynaldo Macedo-Flores also argues that he was 

specifically entrapped as to the quantity of the drugs involved in 

the government’s alleged conspiracy. You must decide whether 

Defendant Macedo-Flores had the intent to distribute the charged 

quantity of the controlled substance, which the conspiracy counts 

is at least 500 grams of cocaine and 500 grams of 

methamphetamine. You must also decide whether the government 

inflated the quantity of drugs to make Macedo-Flores’s 

punishment more severe. Finally, if you find that Defendant 

Macedo-Flores was specifically entrapped as to the quantity of 

drugs involved, you must decide what quantity (and specific count 

in the indictment) was not a result of that entrapment.

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During the jury charge conference at trial, Macedo argued that he was entitled 

to his requested sentencing entrapment instruction, relying on unpublished 

Ninth Circuit precedent recognizing the defense. See United States v. Allen, 

242 F. App’x 425 (9th Cir. 2007). According to Macedo’s attorney, Allen

recognized that sentencing entrapment was a viable defense where a 

defendant proves that either: (a) the Government improperly influenced the 

amount of drugs involved in the conspiracy, or (b) the Government led the 

defendant to sell more drugs than he was predisposed to sell. Macedo’s counsel 

acknowledged that “I don’t think we can argue that second prong, Mr. Macedo 

was predisposed to sell those quantities.” He added, however, that “we do 

think we have ample evidence in the record that the Government inflated the 

amount of drugs that . . . Mr. Macedo is responsible for.” He contended that 

certain sales were transacted “for no reason or purpose” and that “the only 

reason [the Government transacted additional amounts] was to jack up 

[Macedo’s] potential sentence and to jack up, I guess, the threshold.” After 

“wrestling” with the issue and considering relevant authority, the court 

declined to give the requested instruction. 

The jury convicted Macedo on all counts. At sentencing, the court 

determined that Macedo’s Guidelines range was a life term, but it varied 

downward to 300 months. In doing so, the court specifically addressed 

Macedo’s objection based on the sentencing enhancement:

I believe that based upon the evidence presented at the trial, the 

law enforcement methods used in this case were legitimate and in 

an attempt to determine the scope of the conspiracy, find other 

conspirators and other sources of supplies, and that it was 

appropriate to do so.

The court considered the Guidelines but stated that its chosen non-guidelines 

sentence was appropriate after considering the 18 U.S.C. § 3553(a) factors. 

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Therefore, the court remarked that it was the same sentence it would have 

imposed even if it was incorrect on any of the Guidelines objections Macedo 

filed.

Macedo now makes three challenges to his conviction and sentence. We 

address each challenge in turn.

III.

A.

First, Macedo argues that the evidence warranted a sentencing 

entrapment defense jury instruction as to both drug trafficking counts because 

a “reasonable jury could have determined that [the undercover agent’s] cocaine 

purchases in and after March 2013 were undertaken to inflate” the drug 

quantity. Because this circuit does not recognize such a defense nor does 

Macedo prove true entrapment, we AFFIRM the district court’s denial to 

instruct the jury on sentencing entrapment.

We review the district court’s refusal to give a requested jury instruction 

for an abuse of discretion. United States v. Jones, 132 F.3d 232, 242 (5th Cir. 

1998) (citation omitted). This court will only reverse the district court for 

refusal to give a requested instruction “if the proposed instruction was (1) 

substantively correct, (2) not substantively covered in the jury charge, and (3) 

concerned an important issue in the trial, such that failure to give the 

requested instruction seriously impaired the presentation of a defense.” Id.

As noted by both parties, this court has never recognized sentencing 

entrapment as a defense,3 but we have consistently noted that, were we to 

 

3 Despite several sister circuits’ adoption of this defense, this circuit has yet to 

explicitly recognize the defense of sentence entrapment. See Stephens, 717 F.3d 440, 446 (5th 

Cir. 2013) (“We have never recognized sentencing entrapment as a defense.”); see also United 

States v. Alvarez, 575 F. App’x 522, 528 (5th Cir. 2014) (“[T]his court does not recognize . . . 

‘sentencing entrapment’ in any context.”); United States v. Jones, 664 F.3d 966, 984 (5th Cir. 

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accept the defense, it would only be cognizable in cases involving “true 

entrapment,” United States v. Tremelling, 43 F.3d 148, 152 (5th Cir. 1995) 

(citation omitted), or where there is proof of “overbearing and outrageous 

conduct” on the Government’s part. Stephens, 717 F.3d at 446. 

In order to establish the defense of true entrapment, “a defendant must 

make a prima facie showing of (1) his lack of disposition to commit the offense 

and (2) some governmental involvement and inducement more substantial 

than simply providing an opportunity to commit the offense.” Id. at 444

(internal quotation marks and citation omitted); see also United States v. 

Bradfield, 113 F.3d 515, 521 (5th Cir. 1997) (“The critical determination in an 

entrapment defense is whether criminal intent originated with the defendant 

or with the government agents.” (citations omitted)). In examining a 

defendant’s predisposition to commit the offense, the court is to look at, inter 

alia, (1) the defendant’s “eagerness to participate in the transaction,” and (2) 

the defendant’s “ready response to the government’s inducement offer.” United 

States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997) (internal quotation marks 

and citation omitted). Further, “[p]redisposition . . . focuses upon whether the 

defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who 

readily availed himself of the opportunity to perpetrate the crime.” Mathews v. 

United States, 485 U.S. 58, 63 (1988) (quoting Sherman v. United States, 356 

U.S. 369, 372 (1958)). This court has previously held that “[a] lack of 

predisposition can appear from, for example, lack of prior interest or 

 

2011) (“[T]his Court apparently has not expressly determined whether we have accepted the 

concept of sentencing factor manipulation.”); United States v. Snow, 309 F.3d 294, 295 (5th 

Cir. 2002) (“This court has not had to determine whether sentencing entrapment is a 

cognizable defense to a sentence.”). Almost all of our sister circuits have opined about both 

sentencing entrapment and sentencing factor manipulating, reaching varied conclusions. See 

United States v. Sed, 601 F.3d 224, 229–30 (3d Cir. 2010) (collecting cases).

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experience related to the crime, significant hesitation or unwillingness, or 

attempts to return discussion to lawful conduct.” United States v. Theagene,

565 F.3d 911, 920 (5th Cir. 2009). Where a defendant “promptly avail[s] 

himself of [a] criminal opportunity, it is unlikely that his entrapment defense

. . . [warrants] a jury instruction.” Jacobson, 503 U.S. 540, 550 (1992).

Only after the defendant has made a prima facie showing of entrapment 

by showing both elements—lack of predisposition and governmental 

inducement—is the defendant entitled to an entrapment instruction by the 

court. See Stephens, 717 F.3d at 444. If the defendant can make this prima 

facie showing, he shifts the burden “to the government to prove beyond a 

reasonable doubt that the defendant was disposed to commit the offense before 

the government first approached him.” Theagene, 565 F.3d at 918.

Macedo has failed to make a prima facie showing of true entrapment, 

and as such, the district court did not abuse its discretion by denying his 

requested jury instruction. First, Macedo has failed to prove that he was not 

already predisposed to selling drugs prior to his interactions with Detective 

Boston. In a similar case involving a paid informant, this court held that a 

defendant who “readily agreed to arrange a drug deal” and “demonstrated 

knowledge of his role as a broker during the drug transaction” was not entitled 

to an entrapment defense. Chavez, 119 F.3d at 345–46; see also United States 

v. Gilmore, 590 F. App’x 390, 395–96 (5th Cir. 2014) (looking to the attitude of 

the defendant and stating that “[e]vidence of predisposition can include . . . 

active, enthusiastic participation or demonstrated expertise in the criminal 

endeavor.”) In the instant case, there is more than enough evidence that a jury 

could reasonably infer that Macedo was predisposed to selling drugs and to 

selling large quantities of drugs. Not only did Macedo’s counsel concede that 

“Macedo was predisposed to sell those quantities,” but Macedo never hesitated 

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when negotiating the drug purchases with Detective Boston, no matter the 

quantity. See Gilmore, 590 F. App’x at 396. 

Second, Macedo has also failed to show governmental involvement and 

inducement more substantial than simply providing an opportunity to commit 

the offense. See Bradfield, 113 F.3d at 521. “Inducement . . . appear[s] when 

government agents persist in encouraging criminality after a defendant rejects 

overtures.” Theagene, 565 F.3d at 922. In Bradfield, police paid a confidential 

informant a contingency fee to successfully induce Bradfield to participate in a 

drug deal. 113 F.3d at 518, 523. The informant made “approximately eighteen 

calls during April 1992, in an unrelenting campaign to entice Bradfield to do a 

drug deal.” Id. at 523. In that case, this court concluded that there was “a 

plethora of evidence of government inducement[,]” which was “more than 

sufficient to establish a prima facie showing [of inducement].” Id. at 523–24. 

In Jacobson, government agents repeatedly sent the defendant personalized 

correspondence and fake advertisements to encourage him to order child 

pornography materials. Jacobson, 503 U.S. at 546–47. Initially the defendant 

only expressed interest in adult pornography, but after two years of the 

government’s propositions, he placed an order for child pornography. The 

Government argued that he was predisposed to commit the crime, but “[did] 

not dispute that it induced [defendant] to commit the crime.” Id. at 549 n.2.

In the instant case, unlike the defendants in Bradfield or Jacobson,

Macedo was not subject to the Government’s substantial inducement. To the 

contrary, Detective Boston simply initiated routine drug deals with Macedo, 

who, without hesitation, consummated several purchases in varying amounts. 

Further, Detective Boston never coaxed or persuaded Macedo into these drug 

deals; Macedo was a willing participant. Cf. Bradfield, 113 F.3d at 521, 523–

24. Macedo argues that although he might have been predisposed to selling 

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large amounts of drugs, the cocaine purchases in and after March 2013 were 

undertaken to inflate the scope of the conspiracy in terms of drug quantity. 

The Government concedes that Macedo’s attorney did in fact show that “(1) the 

lead agent was generally aware that a defendant who was involved with a 

higher volume of drugs is subject to a higher sentence, and (2) agents continued 

to make purchases through Macedo even after they could have arrested him 

and after they had identified his immediate suppliers.” However, the law 

enforcement officers continued to conduct transactions with Macedo for the 

purposes of identifying his suppliers, triggering activity with suppliers further 

upstream, developing probable cause for other investigative measures, or 

maintaining the detective’s relationship with Macedo.4 

There is instead “a plethora of evidence” refuting Macedo’s arguments of 

government inducement, not only to sell the drugs but to sell the greater 

quantities. Cf. Bradfield, 113 F.3d at 521, 523–24. Macedo has not proven 

that the Government induced him to sell drugs generally, nor has he proven 

that the Government induced him to sell larger quantities of drugs than what 

he was already predisposed to sell. Thus, the district court did not abuse its 

discretion in denying Macedo’s requested sentence entrapment jury 

instruction.

B.

Second, Macedo argues that although the Government introduced 

adequate evidence of the falsity of his testimony during his mother’s trial, it 

made little or no effort to show its materiality. We disagree. 

 

4 Macedo was the Government’s only contact in the conspiracy. In fact, when the 

Government saw an opportunity to bypass Macedo and possibly deal directly with his 

supplier, their effort to seize on that opportunity was unsuccessful. 

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When weighing the sufficiency of the evidence, this court “reviews the 

record to determine whether, considering the evidence and all reasonable 

inferences in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable 

doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en 

banc).

Perjury is defined as “knowingly mak[ing] any false material 

declaration” to any court or grand jury. 18 U.S.C. § 1623(a). The declaration 

must be “material to the point in question.” Id. Materiality under § 1623 

requires only that the defendant’s statements had “a natural tendency to 

influence, or [were] capable of influencing, the decision of the decisionmaking 

body to which it is addressed.” United States v. Brown, 459 F.3d 509, 529 (5th 

Cir. 2006) (internal quotation marks and citations omitted). “The Government 

does not have to demonstrate that the grand jury was actually hindered in any 

way by the falsehood.” Id. (alteration in original). If the false statement was 

capable of influencing the jury, it is material. See United States v. Jimenez, 

593 F.3d 391, 400 (5th Cir. 2010). Further, “the statements need not be 

material to any [p]articular issue but may be material to any proper matter of 

inquiry.” United States v. Cuesta, 597 F.2d 903, 921 (5th Cir. 1979) (citing 

United States v. Abrams, 568 F.2d 411, 420 (5th Cir. 1978)). 

Count Four of the superseding indictment charged Macedo with 

committing perjury during his mother’s trial. That count specifically alleged 

that Macedo’s mother’s intent—i.e., whether she knowingly participated in the 

conspiracy—was a material issue and that Macedo testified falsely when he 

said that he received the proceeds from a methamphetamine sale from his 

mother and gave it to his supplier. In truth, Macedo’s mother gave the money 

directly to Madrigal, the meth supplier, after her transaction with Detective 

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Boston. Macedo concedes that the Government proved that this testimony in 

his mother’s trial was false. However, he argues that this evidence fails to 

support his perjury conviction because the Government did not instruct 

Macedo’s jury that the prior false testimony was material in his mother’s trial. 

Macedo cites to United States v. Damato, 554 F.2d 1371 (5th Cir. 1977), 

a case where the Government introduced ample evidence of the falsity of the 

defendant’s testimony during a suppression hearing. Id. at 1372. Because the 

defendant’s false testimony was “only a small portion of the entire record made 

at the hearing and [did] not reflect the issues that the motions to suppress 

raised,” this court held that the Government’s proof of materiality was 

insufficient. Id. at 1373. More specifically, the court held that the record 

before the trier of fact must do more than “[hint] at the relationship between 

[the defendant’s] statements and the [prior proceeding].” Id. at 1372. Macedo’s 

reliance on Damato is misplaced. In that case, the materiality of the false 

testimony was inadequate because the Government never informed the jury on 

what issues were raised by the suppression motions. Id. at 1373. Thus, even 

if the jury could find that the defendant’s testimony was false, it did not know 

what issues were before the court weighing the suppression motion and 

therefore had no way of knowing how the false testimony related to those 

issues. 

By contrast, when a defendant’s false statements related to whether he 

“had knowledge of” certain aspects of the investigation and criminal activity 

and the jury was aware of those issues, this court held that the false statements 

were material. Cuesta, 597 F.2d at 921. The defendant in Cuesta testified that 

he had never told a co-defendant that someone would kill the victim for being 

a government informant and implicating the defendant in the criminal 

activity. Id. at 910–11. However, the Government had proof of the falsity of 

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the statement from a taped conversation between the co-defendants. Id. 

Because the false statement was “capable of influencing the [] jury” as to 

whether the defendant had knowledge of the illegal activities, this court held 

that the statement was material. Id. 

The instant case is more analogous to Cuesta, as the jury in Macedo’s 

trial was well aware that the primary issue in his mother’s trial was whether 

she was a knowing participant in the drug conspiracy. See id. His false 

testimony on the record—that his mother never conspired with him to sell 

drugs and that he never told her that the package she delivered to Detective 

Boston on April 24, 2013, contained drugs—did not just “hint at the 

relationship” between his statements and the issues before his mother’s jury. 

See Damato, 554 F.2d at 1372. Instead, Macedo’s false testimony was directly 

related to the critical issue of whether his mother was a knowing participant 

in the drug transactions, and the jury was well aware of that. See Cuesta, 597 

F.2d at 921. Thus, it is almost without question that this false testimony was 

capable of influencing the jury. See Jimenez, 593 F.3d at 400. 

As such, viewing the evidence in the light most favorable to the 

Government, there was sufficient evidence that Macedo’s false statements 

were material to the issue of his mother’s knowing participation in the drug 

conspiracy. 

C.

Third, Macedo argues that the Government agent’s lay opinion 

testimony regarding the meaning of certain coded words should not have been 

admitted because the agent possessed no special familiarity with the meaning 

of the recorded language nor was he was a participant in the recorded 

conversations at issue. We disagree.

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We review the district court’s evidentiary rulings for abuse of discretion, 

subject to a harmless error analysis. United States v. Jackson, 636 F.3d 687, 

692 (5th Cir. 2011). A reversal is not warranted unless the defendant shows 

“that the district court’s ruling caused him substantial prejudice.” United 

States v. El-Mezain, 664 F.3d 467, 494 (5th Cir. 2011) (internal quotation 

marks and citation omitted), as revised (Dec. 27, 2011); see Fed. R. Evid. 103(a). 

Lay opinion testimony is limited to the witness’s opinion and must be: 

“(a) rationally based on the witness’s perception; (b) helpful to clearly 

understanding the witness’s testimony or to determining a fact in issue; and 

(c) not based on scientific, technical, or other specialized knowledge within the 

scope of Rule 702.” Fed. R. Evid. 701; see also United States v. Akins, 746 F.3d 

590, 598–99 (5th Cir. 2014). Further, “[t]his Court has recognized that in the 

context of drug conspiracies, [d]rug traffickers’ jargon is . . . a fit subject for 

expert testimony. [However,] we have recognized that testimony about the 

meaning of drug code words can be within the proper ambit of a lay witness 

with extensive involvement in the underlying investigation.” Akins, 746 F.3d 

at 599 (5th Cir. 2014) (internal quotation marks and citation omitted, and 

alterations in original).

Several cases in this circuit have addressed similar factual scenarios 

where an agent in a drug conspiracy investigation testified as to his 

understanding of the meaning of slang or code words used in wiretapped 

conversations. See Akins, 746 F.3d at 598–600; El–Mezain, 664 F.3d at 514; 

United States v. Miranda, 248 F.3d 434, 441 (5th Cir. 2001). In Akins, the lead 

investigator on a drug conspiracy investigation testified at trial as a lay opinion 

witness about “his understanding of the meanings of various code words used 

in recorded wiretapped conversations.” 746 F.3d at 597. He testified that the 

meanings he ascribed to the code words were gleaned from “the course of the 

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investigation as well as his career experience.” Id. This court held that the 

district court did not abuse its discretion in permitting the testimony. Id. at 

599–600. It further held that “[t]o the extent that certain portions of [the 

investigator’s] testimony . . . crossed the line into drawing exclusively on his 

expertise, it was cumulative of other testimony [in the record] and therefore 

harmless.” Id. at 600.

Similarly in El–Mezain, two agents were extensively involved in the 

investigation of a conspiracy and testified to their understanding of the events 

in that case. 664 F.3d at 514. This court held that “[t]estimony need not be 

excluded as improper lay opinion, even if some specialized knowledge on the 

part of the agents was required, if it was based on first-hand observations in a 

specific investigation.” Id. Also, in Miranda, the Appellant claimed that an 

FBI agent, who had not been designated as an expert witness, testified to the 

meanings of various code words heard on intercepted phone calls and thereby 

“‘crossed the line’ from lay to expert opinion testimony.” 248 F.3d at 441 

(internal citation omitted). In rejecting that argument, this court again held 

that the agent’s testimony was permissible under Federal Rule of Evidence 701 

because the agent’s “extensive participation in the investigation of this 

conspiracy, including surveillance . . . and the monitoring and translating of 

intercepted telephone conversations, allowed him to form opinions concerning 

the meaning of certain code words used in this drug ring based on his personal 

perceptions.” Id. at 441.

Although Agent Torres’s experience as a law enforcement officer may 

have allowed him to testify as an expert, our case law also allows him to testify 

to his lay opinion regarding the meaning of code words used in an investigation 

for which he is the lead investigator. See Akin, 746 F.3d at 598–600; ElMezain, 664 F.3d at 514; Miranda, 248 F.3d at 441. Analogous to the agents 

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in the case law, Agent Torres was the lead investigator on this drug conspiracy. 

A native Spanish speaker, Agent Torres oversaw “the entire investigation from 

beginning to end” and testified that his duties “in the case [included] listening 

and just being up-to-date on all the wire interception phone calls.” His opinion 

about what Macedo meant when he used the terms “la doña” and “la señora”—

both Spanish terms for “lady”—was based on his substantial involvement in 

the investigation of the drug conspiracy. The district court permitted Agent 

Torres’s testimony based on his training and experience generally, but Agent 

Torres clarified that his opinion was based on his experience in this particular 

investigation.

Attempting to distinguish this case, Macedo cites to United States v. 

Ebron, 683 F.3d 105, 137 (5th Cir. 2012), which held that “[a] lay opinion must 

be based on personal perception . . . and must be helpful to the jury.” He argues 

that Agent Torres’s testimony was not helpful because Torres “ha[d] no more 

insight into [the] meaning [of the code words] than the jury.” He also argues 

that this court has never allowed an officer to testify that language was not 

coded. First, Ebron actually bolsters the Government’s position, as Agent 

Torres’s perceptions of the meaning of the Spanish words for lady likely help 

the jury to decide whether Macedo’s mother was a participant in the drug 

conspiracy. See 683 F.3d at 137. Second, Agent Torres had much more insight

into the meaning of the code words than did the jury. Not only is he a native 

Spanish speaker, but he oversaw the entire investigation and listened to all of 

the intercepted phone calls. This gives him a unique perspective and insight 

into the conspiracy from which the jury could benefit. Thus, his opinion was 

likely helpful to the jury’s understanding of the case. Third, Macedo’s 

argument that this court has never allowed an officer to testify that language 

was not coded is a conflated statement of the issue. Whether the agent testifies 

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to the true meaning of coded words or instead testifies that such “coded” words 

are to be given their ordinary meaning makes no difference. Either way, the 

case law forecloses the argument. As such, the district court did not abuse its 

discretion in admitting Agent Torres’s lay opinion testimony regarding the 

meaning of “la doña” and “la señora.” 

D.

Further, any error by the district court was harmless. Agent Torres’s 

testimony, like that of the agent in Akins, did not have a substantial and 

injurious effect on the jury’s verdict, as there was ample other testimony 

translating the terms as referring to an older, respected woman—more 

specifically, Macedo’s mother—from an FBI linguist, Detective Boston, 

Madrigal (a co-defendant), and even Macedo himself. See Akins, 746 F.3d at 

599–600 (holding that the admission of an agent’s testimony was harmless in 

light of its consistency with testimony by other agents and a co-conspirator). 

Thus, the admission of Agent Torres’s opinion was also harmless, and we 

AFFIRM.

IV.

We AFFIRM the district court.

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