United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2017 Decided October 10, 2017

No. 16-3011

UNITED STATES OF AMERICA,

APPELLEE

v.

ERNEST MILTON GLOVER, ALSO KNOWN AS FISH,

APPELLANT

Consolidated with 16-3019

Appeals from the United States District Court

for the District of Columbia

(No. 1:07-cr-00152)

Booth Marcus Ripke argued the cause for appellant Helery 

Price. Nicholas G. Madiou, appointed by the court, argued the 

cause for appellant Ernest M. Glover. On the joint briefs were 

Larry Allen Nathans, appointed by the court, and Michael 

Edward Lawlor.

Patricia A. Heffernan, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief were Elizabeth 

Trosman, Elizabeth H. Danello, Anthony Scarpelli, and 

Bernard J. Delia, Assistant U.S. Attorneys.
2

Before: GARLAND, Chief Judge, WILKINS, Circuit Judge, 

and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: Ernest Milton Glover and Helery 

Price here appeal the denial of their petitions to vacate their 

convictions under 28 U.S.C. § 2255. Appellants were 

convicted of conspiracy to possess with intent to distribute and 

to distribute one kilogram or more of phencyclidine, commonly 

known as “PCP,” 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), & 846, 

and were sentenced to the applicable statutory mandatory 

minimum of life imprisonment. 

This Court has reviewed the underlying criminal 

prosecution on a few occasions, including Glover’s and Price’s 

direct appeal, see United States v. Glover (“Direct Appeal”), 

681 F.3d 411 (D.C. Cir. 2012), and, most recently, an appeal 

from the denial of co-defendant Anthony Maurice Suggs’s 

§ 2255 habeas petition, United States v. Suggs, 688 F. App’x 

17 (D.C. Cir. 2017). The habeas petitions here present two 

issues upon which the District Court issued a Certificate of 

Appealability: (1) whether counsel was ineffective for failing 

to challenge evidence obtained from an electronic surveillance 

device unlawfully installed in a vehicle outside of the 

authorizing court’s geographic jurisdiction (the “Truck Bug”), 

and (2) whether counsel was ineffective for failing to object to 

specific instances of case agent John Bevington’s testimony in 

which Bevington offered interpretations of evidence reflecting 

his knowledge of the investigation as a whole, which this Court

rejected as contrary to Federal Rule of Evidence 701 in the 

appeal of a separate conviction arising out of the same 

conspiracy, see United States v. Hampton, 718 F.3d 978 (D.C. 

Cir. 2013). 
3

We conclude that counsel did not perform deficiently in 

failing to challenge the Truck Bug. In light of that, the 

evidence against Appellants was sufficiently strong that 

counsel’s failure to object to specific instances of testimony by 

Bevington did not prejudice the defense, and we therefore 

affirm.

BACKGROUND

Appellants were convicted in a jury trial that took place 

between February 11, 2008, and March 13, 2008. In addition 

to Price, also known as “Brother,” and Glover, also known as 

“Fish” or “Ernie,” targets of the investigation leading to this 

prosecution included Anthony “Applejack” or “Ap” Suggs, 

James Parker, Glendale Lee, Ernest Glover’s brother Lonnell 

Glover, and Ernest Glover’s relative Cornell “Tony” Glover,1

among others. During the trial, FBI case agent John Bevington 

testified multiple times, describing the investigation and 

providing the foundation for the introduction of surveillance 

recordings from two authorizations: a bug installed in 

co-conspirator Lonnell Glover’s truck and a wiretap of Suggs’s 

cell phone. 

The surveillance evidence from the Truck Bug made up a 

small, but important, part of the evidence against Glover and 

Price. The bug was authorized by Judge Collyer of the District 

Court for the District of Columbia. United States v. Lonnell 

Glover, 736 F.3d 509, 510 (D.C. Cir. 2013). The FBI affidavit 

in support of the warrant for the Truck Bug identified both 

Appellants by name as targets of the investigation. The 

affidavit stated that the truck was parked at BWI Airport, and 

that is where the agents installed the bug. 

 

1 We refer to Lonnell Glover and Cornell Glover by their full 

names to avoid confusion with Appellant Ernest Glover. 
4

The prosecution introduced five recordings from the Truck 

Bug at Appellants’ trial – three conversations between Lonnell 

Glover and Suggs and one conversation apiece between 

Lonnell Glover and two other associates. None of the Truck 

Bug recordings captured conversations with Appellants, but 

the interlocutors recorded by the Truck Bug discussed them. In 

Truck Activation 186, Suggs described to Lonnell Glover that 

“Ernie . . . had owed me, you know I was gonna get my paper 

from him” and had told Suggs “I might got half and owe you 

half.” In Truck Activation 706, Lonnell Glover told Cornell 

“Tony” Glover that “Ap just got a 16 for Fish, that there is 

moving already,” referring in slang to a quantity of PCP and to 

Ernest Glover by his nickname, “Fish.” As to Price, Truck 

Activation 91 included a discussion in which Suggs told 

Lonnell Glover that he would put “[B]rother” “on hold till you 

get back,” despite requests for “halves.” Truck Activation 604 

recorded Lonnell Glover and Suggs discussing whether to 

“give Brother the old water or the new water,” to make sure

that Brother’s “regular people” were “satisfied happy.” Suggs 

told Lonnell Glover that “Brother needs a gallon,” repeating 

“Brother, I know what he want a gallon.” This recording from 

the Truck Bug was a critical piece of evidence against Price, 

since his nickname is “Brother” and “water” is a slang term for 

PCP, and the prosecution used the phrase “Brother wants a 

gallon” in both the opening and closing arguments. Lonnell 

Glover and Suggs also discussed Ernest Glover in their 

conversation in Activation 604, with Lonnell saying that 

“Fish . . . got to get clean” and Suggs commenting on whether 

Ernest Glover was “owing somebody.” 

The prosecution also introduced approximately 80 calls

from the Suggs cell phone wiretap, and the testimony about 

these recordings occupied a substantial part of the trial. In 

many of the calls, Appellants and their associates discussed 

getting together in the future or coordinating a 
5

contemporaneous rendezvous. For example, in Activation 384, 

Price told Suggs “come and see me tomorrow. That be 

good . . . . I’ll hit you tomorrow. Hit me tomorrow cause them 

peoples been pressing me for real. I just ain’t get on top of it.” 

In Activation 628, Price and Suggs reacted to viewing FBI 

surveillance vehicles when they were on their way to meet one 

another. They called off their meeting in apparent suspicion 

that they were being surveilled. See Trial Tr. 7:10-9:13 (Feb. 

27, 2008, Afternoon Sess.). In other calls recorded by the 

Suggs wiretap, Appellants and their confederates discussed 

money. For instance, in Activation 2227, Suggs and Glover 

discussed money in terms like “tray,” “deuce,” and “piano.” In 

Activation 5443, Price left a voicemail for Suggs, requesting 

that Suggs answer his phone and adding: “you don’t like a 

moola or what?” 

The prosecution utilized FBI case agent Bevington to 

introduce the recordings from the phone wiretap and the Truck 

Bug. Some of the recordings were introduced with minimal 

commentary, with Bevington simply providing the time and 

date information as foundation. See, e.g., Trial Tr. 73:2-20

(Feb. 21, 2008, Morning Sess.). However, on other occasions, 

Bevington testified about the significance of the recorded 

communications. For example, after a line of recordings in 

which Price and Suggs discussed seemingly random items, 

Bevington testified that “book,” “Sister Sister magazine,” and 

“information” meant PCP, explaining that “[t]hey’ve changed 

the code multiple times. But they’re clearly not talking about 

or using the same words to talk about what they’re talking 

about.” Trial Tr. 99:3-9 (Feb. 27, 2008, Morning Sess.). 

Interpreting a conversation in which Suggs informed Price that 

“we should have that apartment cleaned out one day this week 

then you can move in there,” Bevington explained his view that 

the exchange was “Mr. Suggs letting Mr. Price know that he 

should have PCP for sale the following week” based on 
6

Bevington’s observation “during the course of the investigation 

[that] there was never any indication that Mr. Suggs was 

renting apartments or owned property.” Trial Tr. 12:16-23

(Feb. 27, 2008, Morning Sess.).

Other evidence against Appellants included significant 

physical evidence recovered when police searched Glover’s 

residence, including $985 in cash, a dollar bill with a substance 

suspected to be heroin, and a digital scale from a bedroom 

where Glover’s wallet was found. In the kitchen, police found 

baggies, including one baggie containing heroin. In a basement 

closet, police found shoeboxes full of small glass bottles, a 

turkey baster, objects similar to eyedroppers, funnels, a juice 

bottle with the odor of PCP, vanilla extract bottles with the odor 

of PCP, a rifle, a shotgun, and ammunition. The District Court 

found that the juice bottle contained 178.1 grams of PCP and 

the vanilla extract bottles contained 6.2 grams of PCP. The 

recovered items were compelling evidence against Glover in 

particular, as they connected Glover to the drugs and 

contextualized his conversations with Suggs and other coconspirators. Except for the heroin and weapons, which were 

admitted only against Glover, this evidence also contributed to 

the case against Price. 

In addition, by stipulation, the jury was told that Glover 

was previously convicted of unlawful distribution of PCP, 

based on six controlled purchases between April 25, 1994 and 

February 13, 1996. Trial Tr. 42:21-43:16 (Feb. 25, 2008, 

Morning Sess.). A search executed at Glover’s residence

pursuant to the investigation in Glover’s previous case revealed 

seven bottles with trace amounts of PCP. Id. at 43:5-11. This 

stipulation, too, was admissible against Glover alone.

Further direct evidence relating more closely to other 

co-conspirators added to the case against Glover and Price. The 
7

FBI investigation conducted two controlled buys of PCP – one 

from co-defendant James Parker on January 4, 2007, and one 

from Suggs on January 20, 2007. On three separate occasions, 

agents videotaped meetings between members of the PCP 

conspiracy. And law enforcement ultimately seized significant 

quantities of PCP and paraphernalia from the residences of 

various co-conspirators, including 7.7 kilograms of PCP from 

Suggs’s residence. 

The jury convicted Appellants based on this body of 

evidence, and Appellants were sentenced to the mandatory 

minimum of life imprisonment. This Court affirmed on direct 

appeal and described the evidence against Glover and Price as 

“extensive” and “voluminous.” Direct Appeal, 681 F.3d at 

417, 424.

Certain later developments in the cases of others affiliated 

with this conspiracy are relevant to the issues now before us. 

After Appellants’ direct appeal was decided, this Court 

decided the appeal of Jerome Hampton, another Lonnell 

Glover associate convicted in a separate trial. United States v. 

Hampton, 718 F.3d 978 (D.C. Cir. 2013). Hampton challenged 

the testimony of Agent Bevington as impermissible lay opinion 

testimony based on Bevington’s understanding of the 

investigation as a whole. The Court agreed, reasoning that 

“[w]hen Bevington interpreted those conversations on the basis 

of his listening to ‘all of the calls,’ the jury had no way of 

verifying his inferences or of independently reaching its own 

interpretations.” Id. at 983. The Court noted the “weakness of 

the government’s other evidence,” including that there was no 

direct evidence tying Hampton to the drugs, and concluded that 

the error in admitting Bevington’s opinion testimony was not 

harmless because of its “importance . . . to the government’s 

case.” Id. at 984.
8

In addition, Lonnell Glover’s conviction in a separate trial

was overturned on the basis that the warrant authorizing the

Truck Bug was facially insufficient. The warrant stated that 

the FBI could install the device in the District of Columbia, the 

District of Maryland, or the Eastern District of Virginia, and 

they did so while the truck was parked in Maryland. Lonnell

Glover, 736 F.3d at 510. This Court concluded that the warrant 

was unlawful because a judge can only authorize interception 

“within the territorial jurisdiction of the court in which the 

judge is sitting.” Id. at 514 (emphasis in original) (quotation 

marks omitted). The Court held that the failure to preclude the 

Truck Bug evidence was plain error, noting that the prejudice 

was “indisputable” because “[t]he truck bug recordings were, 

in the words of the prosecuting attorney at trial, some of the 

‘most incriminating’ and ‘most powerful’ evidence at trial, and 

there is a high likelihood that this evidence affected the 

outcome.” Id. at 516. The Court remanded for a new trial. Id.

at 517.

LEGAL STANDARDS

This Court reviews de novo a denial of an ineffective 

assistance of counsel claim. United States v. Abney, 812 F.3d 

1079, 1087 (D.C. Cir. 2016). We measure effectiveness of 

counsel by the familiar standard of Strickland v. Washington, 

466 U.S. 668 (1984). To show ineffective assistance of 

counsel, a defendant must show “that counsel’s performance 

was deficient” such that “counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment” 

and that “the deficient performance prejudiced the defense.” 

Strickland, 446 U.S. at 687. Prejudice requires a “reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different” – that is, 

the defendant must show “a probability sufficient to undermine 

confidence in the outcome.” Id. at 694. A court can deny an 
9

ineffectiveness claim on either the deficiency or prejudice 

prong. Id. at 697.

“[T]he same standard applies with respect to claims of the 

ineffective assistance of appellate counsel.” Payne v. 

Stansberry, 760 F.3d 10, 13 (D.C. Cir. 2014). This Court has 

recognized that “effective appellate advocacy often entails 

screening out weaker issues,” and “a reasonable winnowing of 

weaker appellate claims” may include the “decision to forego”

some claims. Id. at 13-14 (quotation marks omitted). Even 

where a claim would be subject to plain-error review, however, 

counsel may be ineffective for failing to raise an “issue [that] 

had a reasonable likelihood of success,” absent a strategic

justification for that decision. Id. at 14. 

DISCUSSION

I.

Appellants argue that counsel was ineffective for failing to 

seek to suppress the recordings from the unlawfully installed 

Truck Bug. The Truck Bug was authorized pursuant to Title 

III of the Omnibus Crime Control and Safe Streets Act of 1968, 

18 U.S.C. § 2510 et seq. Congress provided that “[a]ny 

aggrieved person . . . may move to suppress the contents” of an 

“unlawfully intercepted” communication. 18 U.S.C.

§ 2518(10)(a)(i). Appellants’ claim for suppression is based on 

Title III’s provision that “‘aggrieved person’ means a person 

who was a party to any intercepted wire, oral, or electronic 

communication or a person against whom the interception was 

directed.” 18 U.S.C. § 2510(11). Appellants argue that this 

term includes targets named in an application or order for 

surveillance, regardless of whether the surveillance actually 

captures said targets’ communication, since a named target is 

“a person against whom the interception was directed,” id. We 

need not resolve the question of Title III target standing 
10

because the existence of an entrenched disagreement between 

jurisdictions itself answers the Strickland question before us: 

counsel was not ineffective for failing to raise a challenge of 

uncertain merit based on unsettled law. 

The question of so-called “target” standing under Title III 

has been litigated since the law’s enactment. In Alderman v. 

United States, a Fourth Amendment suppression case, the 

Supreme Court held that defendants lack standing to challenge 

a search of someone else, reasoning that “suppression of the 

product of a Fourth Amendment violation can be successfully 

urged only by those whose rights were violated by the search 

itself, not by those who are aggrieved solely by the introduction 

of damaging evidence.” 394 U.S. 165, 171-72 (1969). The 

Court remarked that legislatures could extend the Fourth 

Amendment exclusionary rule if they so desired, noting that:

Congress has not done so. In its recent wiretapping 

and eavesdropping legislation, Congress has 

provided only that an “aggrieved person” may move 

to suppress the contents of a wire or oral 

communication intercepted in violation of the Act. 

Title III, Omnibus Crime Control and Safe Streets 

Act of 1968, 82 Stat. 221 (18 U.S.C. § 2518(10)(a) 

(1964 ed., Supp. IV)). The Act’s legislative history 

indicates that “aggrieved person,” the limiting phrase 

currently found in Fed. Rule Crim. Proc. 41(e), 

should be construed in accordance with existent 

standing rules. 

Id. at 175 n.9 (citing S. Rep. No. 1097, 90th Cong., 2d Sess., at 

91, 106). A decade later in Rakas v. Illinois, the Supreme Court 

specifically declined to extend standing under the Fourth 

Amendment to the “target” of a search or seizure. 439 U.S. 

128, 135 (1978). In so holding, the Court rejected an argument 
11

that language in the pre-Title III case Jones v. United States, 

362 U.S. 257 (1960), implied standing under the Fourth 

Amendment for “one against whom the search was directed.” 

Rakas, 439 U.S. at 134-35. Some courts have understood this 

progression to undermine target standing under Title III. 

According to these courts, the “existent [Fourth Amendment] 

standing rules” that Congress incorporated when it enacted 

Title III included the rule, later clarified in Rakas, that those 

against whom surveillance is directed have no standing unless 

they were directly victimized by the Fourth Amendment 

violation. See, e.g., United States v. Cruz, 594 F.2d 268, 273 

(1st Cir. 1979) (stating that “[w]e have also addressed the 

question of who is an ‘aggrieved person’ under [Title III]” and

citing a case discussing Fourth Amendment standing); United 

States v. Scasino, 513 F.2d 47, 50 (5th Cir. 1975) (reasoning 

that “[u]nder prestatutory fourth amendment law, one does not 

have standing to suppress an illegal wiretap unless his 

conversations were overheard or the conversations occurred on 

his premises”). 

But courts disagree. Among them, the Ninth Circuit has 

found standing under Title III where “[a defendant’s] 

conversations were the target of the surveillance.” United 

States v. Oliva, 705 F.3d 390, 395 (9th Cir. 2012). The Sixth 

Circuit has implied that being listed as a “Target Subject” on a 

wiretap application would confer standing as an “aggrieved 

person” under 18 U.S.C. § 2510(11). United States v. Asker, 

676 F. App’x 447, 455 (6th Cir. 2017) (noting that in the 

conversations the defendant sought to suppress, “[defendant] 

was not a party. Nor was he a ‘person against whom the 

interception was directed’ . . . . [T]he government’s wiretap 

application listed eight ‘Target Subjects’ for monitoring, none 

of whom were [defendant].”). Indeed, the District Court in this 

case surveyed the case law, as well as the legislative history of 

Title III, and suggested that the better reading of Title III allows 
12

standing for surveillance targets. These courts recognize a gap 

where the Supreme Court in Alderman discussed in dicta, but 

did not describe, the Fourth Amendment standards that it 

attributed to Congress’s enactment of Title III. 

Critically, this Court has never itself directly decided 

whether targets of surveillance have standing as such under 

Title III’s “aggrieved person” definition. In United States v. 

Bellosi, upon which Appellants rely in their reply, we discussed 

Alderman’s citation of the language in Jones v. United States

referring to “one against whom surveillance was directed” as 

one of the Fourth Amendment standing principles with which 

Section 2510(11) was “consistent.” 501 F.2d 833, 842 n.22

(D.C. Cir. 1974). But in that case, “the Government d[id] not 

allege before us that any of the appellees d[id] not fit within the 

statutory definition of an ‘aggrieved person,’” making this 

discussion unnecessary for the outcome. See id. at 842. In In 

re Evans, witnesses before a grand jury sought disclosure of 

surveillance based on “their belief that wiretapping and 

electronic surveillance had been directed against them and that 

the grand jury’s subpoenas and questions were the fruit of that 

wiretap.” 452 F.2d 1239, 1242 (D.C. Cir. 1971). The issue 

was whether the parties’ status as grand jury witnesses afforded 

standing for them to seek disclosure of surveillance, not 

whether that standing turned on the witnesses being “targets” 

instead of actual interceptees. In United States v. Williams, this 

Court stated that to have standing to challenge surveillance, 

“the accused must show that it was directed at Him, that the 

Government intercepted His conversations or that the 

wiretapped communications occurred at least partly on His 

premises.” 580 F.2d 578, 583 (D.C. Cir. 1978). But this 

opinion did not explain what “directed at Him” means any 

more than the statute elucidates “person against whom the 

interception was directed.” Nor did the Court state whether the 

defendants were listed targets of the surveillance, the essential 
13

fact underlying Appellants’ theory here. Finally, in United 

States v. Scurry, we did not reach the question of target 

standing under Title III, as the wiretaps at issue in that case 

were challenged by the owners of the tapped phones. See 821 

F.3d 1, 6 (D.C. Cir. 2016).

As it has never been necessary for this Court to directly 

determine whether a person named as the target of a wiretap 

application or order is an “aggrieved person” under Section

2510(11) with standing to suppress evidence derived from the 

surveillance in question, such suggestions from our cases 

touching on this issue are mere dicta. 

Our survey of the status of the law on target standing under 

Title III resolves the Strickland question before us. The inquiry 

for deficiency looks at performance “as of the time of counsel’s 

conduct” and accordingly does not require counsel to propound 

vanguard arguments to meet the bare minimum required by the 

Sixth Amendment. See Maryland v. Kulbicki, 136 S. Ct. 2, 4 

(2015) (holding that counsel is not “constitutionally required to 

predict” changes in law). Counsel may decide how to 

“dedicat[e] their time and focus” in preparing a defense, and 

courts cannot second-guess these priorities. Id. We note that 

there is no evidence in the record that counsel were ill-prepared 

or failed to research the law on this issue. Absent that, and in 

light of the deeply unsettled law on the question of standing, 

trial counsel did not perform below the constitutional standard 

in electing not to challenge the Truck Bug, and appellate 

counsel was similarly not deficient in declining to raise the 

issue on appeal. 

We do not reach Appellants’ purported prejudice with 

respect to the Truck Bug evidence because counsel was not 

deficient for failing to challenge it.
14

II.

The same cannot be said, however, for counsel’s 

performance with respect to Agent Bevington’s testimony. 

Given the state of the law, as well as the District Court’s 

direction on the issue, counsel performed below the 

constitutional standard when they failed to challenge specific 

instances of Bevington’s impermissible lay opinion testimony, 

at trial and on appeal. 

In Hampton, we explained that consistent with Federal 

Rule of Evidence 701, a case agent may only testify about 

“interpretations” of recorded statements of defendants if he 

“identifie[s] the objective bases for his opinion” such that the 

jury can assess his testimony and that testimony is helpful to 

the jury, rather than merely “tell[ing] it in conclusory fashion 

what it should find.” 718 F.3d at 981 (quotation marks 

omitted). Interpretations based on “knowledge of the entire 

investigation” are not permissible lay opinion testimony, since 

“the jury ha[s] no way of verifying his inferences or of 

independently reaching its own interpretations” of any 

recordings not before them. Id. at 983. Rule 701 accordingly 

requires both that the witness identify and the jury have access 

to the bases for the witness’s opinion and that the witness 

refrain from merely directing the jury to draw certain 

inferences on those bases. 

In this case, it is clear that counsel performed deficiently 

in failing to challenge lay opinion testimony by Bevington that 

violated Rule 701. Counsel initially objected to the testimony 

that Bevington was likely to offer before the witness took the 

stand, and the District Court directed counsel that it would be 

amenable to objections of that nature, should counsel object 

“line by line” to any problematic testimony. See Trial Tr. 8:20, 

10:11-13 (Feb. 19, 2008, Afternoon Sess.). The District Court 
15

explained its “inbred dislike of having a government agent 

trying to tell the jury what a tape means” and its underlying 

concern about “how [the case agent is] going to have a better 

sense that a hair dryer means drugs than I would . . . . If the 

jury doesn’t listen to the tapes and agree with you, Officer 

Bevington isn’t going to make one bit of difference.” Id. at 

10:1; 9:5-7; 12-13. Despite the District Court’s direction, 

counsel did not renew the objection when Bevington testified 

about his interpretations of conversations recorded by the 

Truck Bug and wiretap. The District Court’s instruction that 

such objections were necessary – and would likely be sustained 

– was clear, as was the requirement of Rule 701 on which the 

objections were based. While we explained this rule in the 

Hampton decision after Appellants’ case was tried, counsel had 

every reason to revive their objections contemporaneously as 

directed during trial based on the plain strictures of the Federal 

Rules of Evidence. Prior to trial, the Advisory Committee 

Notes accompanying the 2000 Amendments already stated that 

“code word[]” opinions are not the proper subject of lay 

opinion testimony pursuant to Rule 701. See Fed. R. Evid. 701

Advisory Committee’s Note to 2000 amendment. Thus, trial 

counsel was deficient for not raising the issue, and appellate 

counsel should have challenged this testimony on direct appeal.

Without objection from Appellants’ counsel, Bevington 

testified several times about the meaning of certain words and 

phrases used by Appellants and their associates. Bevington 

told the jury his interpretation of terms like “Sister Sister 

Magazine” and “information” – commonplace terms that made 

little sense in the context of the group’s conversations. The 

intended meaning of Appellants and their associates in these 

conversations was for the jury itself to determine, without the 

guiding directives of a government witness whose 

interpretation was based on the entirety of the investigation, 

information not available to jurors. Bevington’s translations of 
16

everyday discussions – like the references in Activation 2093 

to an apartment being cleaned out – similarly explained for the 

jury what they properly should have been left to interpret for 

themselves.

Of course, not every explanation about terms used in the 

surveillance recordings was problematic. Experts may testify 

under Rule 702 about generic slang language with which a jury 

may not be familiar. In fact, in Appellants’ direct appeal, this 

Court held that it was harmless error for the prosecution to 

present Bevington’s testimony about the meaning of slang 

terms “such as ‘water’ (PCP), ‘boat’ (marijuana laced with 

PCP), ‘16th Street’ (16 ounces), and ‘32nd Street’ (32 ounces)” 

without first qualifying Bevington as an expert under Rule 702

because he would have so qualified as a result of his significant 

experience investigating drug crimes for the FBI. See Direct 

Appeal, 681 F.3d at 422. Bevington also described the use of 

cigarettes dipped in PCP to offer customers samples of the 

product to explain the discussion in Truck Activation 91, an 

acceptable line of expert testimony because it was based on 

specialized training and assisted the jury in understanding a 

tool of the drug trade with which it might not otherwise be 

familiar. Bevington’s opinion testimony about generic slang 

terms was well within the scope of his expertise as a field agent 

with the FBI – which is why, on direct appeal, this Court 

concluded that any failure to qualify Bevington as an expert 

was harmless. See id. This testimony, and other unchallenged 

portions of Bevington’s presentation, were appropriate parts of 

the Government’s case against Appellants.

III.

Having concluded that Appellants’ counsel performed 

below the constitutional standard when they failed to renew 

their challenges to Bevington’s lay opinion testimony, we now 
17

consider whether Appellants were prejudiced by this 

deficiency. With Bevington’s remaining permissible 

testimony, the Truck Bug evidence, and the significant 

evidence not challenged here, we have no doubt that the jury 

would have convicted Appellants even absent the problematic 

testimony by Bevington. 

We note first that the uncontroverted recordings include 

many exchanges in which Glover and Price arranged to meet 

with Suggs. In call after call – which the District Court 

painstakingly inventoried in its consideration of Appellants’ 

habeas petitions – Appellants made plans to get together with 

Suggs. The frequency of the meetings, and the single-minded 

emphasis on Appellants’ need to receive something from 

Suggs, make these recordings strong circumstantial evidence 

that Appellants were engaged with Suggs in the distribution of

unlawful substances. That Price and Suggs aborted a planned 

meeting when they suspected that they were being followed by 

law enforcement vehicles cements such an inference. 

The Truck Bug evidence also carries significant weight in 

the case against Appellants. As described in the factual 

background above, the Truck Bug recordings submitted against 

both Glover and Price linked Appellants to specific exchanges. 

The Truck Bug evidence linked Glover to a 16-ounce quantity 

of PCP and Price to a gallon. For both Appellants, the Truck 

Bug evidence also demonstrated the exchange of money owed 

between Appellants and Lonnell Glover and Suggs. These 

connections provided significant circumstantial evidence of 

Appellants’ involvement in the PCP conspiracy.

Finally, the pervasive physical evidence in the homes of 

the Glover associates linked the group to the PCP, as did the 

controlled buys conducted by law enforcement in the course of 

the investigation. For Glover in particular, the drugs and drug 
18

paraphernalia recovered when his home was searched was

compelling evidence against him. 

In contrast, the weight of Bevington’s inadmissible lay 

opinion testimony was minimal. Bevington’s interpretations

were primarily used to buttress the prosecution’s argument that 

the vague, guarded terms sometimes used by Appellants and 

others in fact referenced PCP. But the many unchallenged 

conversations from the Suggs wiretap linked Appellants to 

their co-conspirators, and to Suggs in particular, and Truck Bug 

recordings had separately established the connection between 

Appellants and the drug trade, as did the controlled buys and 

physical evidence, including PCP, recovered from Appellants’ 

constant associates. 

Given the quantity of evidence against Appellants and the 

minimal impact of the testimony challenged here, we see no 

prejudice despite counsel’s deficiency in failing to challenge

the improper lay opinion testimony by Agent Bevington. 

Absent prejudice, there is no Sixth Amendment violation.

Strickland, 466 U.S. at 691-92.

***

For the foregoing reasons, we affirm.