FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 06-50387

MARVIN MCCALEB, aka Marvin D.C. No.

Darryl McCaleb; Marvin Darell  CR-03-00849-CBMMcCaleb; Marvin Darrell 1

McCaleb; Dary McCaleb; Marvin OPINION McCaleb; Marvin Darryl McCabb;

Morgan; Sammy Jackson,

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted

November 18, 2008—Pasadena, California

Filed January 13, 2009

Before: Myron H. Bright,* Stephen S. Trott, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Bright

*The Honorable Myron H. Bright, Senior United States Circuit Judge

for the Eighth Circuit, sitting by designation. 

493
COUNSEL

Verna Jean Wefald, Pasadena, California, for the appellant. 

Thomas P. O’Brien, United States Attorney, Christine C.

Ewell, Assistant United States Attorney, and Janet C. Hudson,

Assistant United States Attorney, Los Angeles, California, for

the appellee. 

OPINION

Bright, Circuit Judge: 

Appellant Marvin McCaleb challenges his drug-related

convictions and sentence to life imprisonment, asserting that

the district court (1) improperly instructed the jury, (2) abused

its discretion by admitting certain expert-witness testimony,

and (3) relied on unproven prior convictions. Because the district court did not (1) plainly err in its jury instructions, (2)

abuse its discretion by admitting certain expert-witness testimony, or (3) improperly rely on unproven prior convictions

at sentencing, we affirm.

FACTS AND PROCEDURAL HISTORY

In November 2004, a federal grand jury returned an indictment against McCaleb and other individuals. Count One of

the indictment charged McCaleb and other defendants with

conspiracy to manufacture, to aid and abet the manufacture

of, to distribute, and to possess with intent to distribute, phencyclidine (“PCP”), in violation of 21 U.S.C. §§ 846 and

841(a)(1), (b)(1)(A). Count Two of the indictment charged

McCaleb and two other defendants with possession of ethyl

ether, a precursor chemical, knowing and having reasonable

cause to believe that it would be used to manufacture PCP, in

violation of 21 U.S.C. § 841(c)(2). 

496 UNITED STATES v. MCCALEB
McCaleb and a codefendant’s trial began in March 2005.

At trial, McCaleb conceded guilt on the lesser-included

offense in Count One, conspiracy to possess ethyl ether, and

Count Two. In April 2005, the jury returned guilty verdicts on

Counts One and Two. Ambiguously, the jury also found

McCaleb guilty of Count One’s lesser-included offense. After

the clerk read the verdict in open court, the district court called counsel to sidebar and stated the following: 

According to our instructions, the jury should have

only answered [the lesser-included offense] if they

found the defendant not guilty of Count 1. So what

I would be inclined to do is just to indicate to them

that they should go back and give them another verdict form, and they should be clear as to whether

they find the defendant guilty or not guilty as to

Count 1. And if they find the defendant not guilty as

to Count 1, then they shouldn’t answer [the question

about the lesser-included offense]. 

. . . . 

So I would . . . give them another verdict form and

ask them to be clear about that and then to return

that. 

Without objection from either party, the district court told

the jury the following: “Ladies and gentlemen of the jury, in

looking at the verdict forms that you have returned for each

of the defendants, it is unclear as to what you intended your

verdict to be as to Count 1 of the indictment.” The district

court then stated: 

So, if you intended as to Count 1 to find the defendants not guilty, then of course you would consider

the necessary lesser included, and you would advise

the Court as to your verdict. 

UNITED STATES v. MCCALEB 497
You would then date, sign the verdict form, and

return it. 

If — on the other hand, if you find the defendants

guilty as to Count 1, then you don’t indicate anything in the blank for the necessary lesser included.

I think that’s consistent with the instruction. But

maybe we just didn’t explain it very well. 

After this instruction, the district court gave the jury a clean

copy of the verdict form and told the jury to “retire, continue

deliberating.” And after further deliberations, the jury

returned a verdict finding McCaleb guilty on Counts One and

Two. In accordance with the alternative nature of Count One

and its lesser-included offense, the jury did not fill in the

lesser-included-offense blank on the verdict form.

After the guilty verdicts, the trial resumed on the issue of

drug quantity, and, in May 2005, the jury returned a special

verdict finding that the amount of PCP involved in Count One

was at least 100 grams. The jury’s quantity finding and evidence of McCaleb’s two prior felony drug convictions triggered a statutorily mandated life sentence for Count One. See

21 U.S.C. § 841(b)(1)(A). In June 2006, the district court sentenced McCaleb to life imprisonment on Count One and a

concurrent 240-month term on Count Two. This appeal follows.

DISCUSSION

I.

McCaleb did not object to any of the jury instructions that

he now challenges on appeal. Accordingly, we review

McCaleb’s jury-instruction claims for plain error. See United

States v. Marchini, 797 F.2d 759, 767 (9th Cir. 1986); see

also Fed. R. Crim. P. 52(b). Under this standard, a defendant

must show an “error” that is “plain” and that “affects substan498 UNITED STATES v. MCCALEB
tial rights.” See United States v. Olano, 507 U.S. 725, 732

(1993). Even when a defendant makes all three showings, we

will exercise the discretion to reverse a conviction only if the

error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id.

A.

McCaleb contends first that his convictions should be

reversed because the district court “sua sponte vacated the

verdict . . . on the grounds that it was inconsistent as to count

one, and then ordered the jurors to resume deliberations,

resulting in an unauthorized second verdict that was necessarily coerced.” 

[1] “Any criminal defendant . . . being tried by a jury is

entitled to the uncoerced verdict of that body.” Lowenfield v.

Phelps, 484 U.S. 231, 241 (1988). Coercion can occur when,

for example, a district court tells a jury that it must reach a

decision, Jenkins v. United States, 380 U.S. 445, 446 (1965),

a district court polls a jury before it reaches a verdict, Brasfield v. United States, 272 U.S. 448, 449-50 (1926), or a special verdict form “reformulate[s] the elements of the crime,”

United States v. Reed, 147 F.3d 1178, 1181 (9th Cir. 1998).

[2] We conclude that McCaleb’s assertion that the district

court coerced a verdict lacks merit. The record shows that the

jury found McCaleb guilty both of Count One and Count

One’s lesser-included offense. In such circumstances, a district court may treat the guilty verdict on the lesser-included

offense as surplusage. See, e.g., United States v. Howard, 507

F.2d 559, 563 (8th Cir. 1974). If a district court can disregard

a guilty verdict on a lesser-included offense, then it does not

plainly err by asking the jury to clarify its verdict. After discovering the ambiguity, the district court here instructed the

jury on the alternative nature of these offenses and asked the

jury to clarify its verdict. The district court stated that it

ordered the jury to reconvene because it was “unclear as to

UNITED STATES v. MCCALEB 499
what [the jury] intended [its] verdict to be as to Count 1 of the

indictment.” Moreover, as McCaleb concedes, “the [district]

court may ask the jury to clarify an inconsistent or ambiguous

verdict.” See Larson v. Neimi, 9 F.3d 1397, 1402 (9th Cir.

1993) (stating that such a practice “comports with common

sense as well as efficiency and fairness”). 

[3] The cases McCaleb cites in support of his argument are

distinguishable. In Jenkins, the Supreme Court reversed a

conviction because a district court had instructed a deadlocked jury that it must reach a verdict. See 380 U.S. at 446.

But the jury here was neither deadlocked nor told that it must

reach a verdict. Similarly, this Court held in United States v.

Pino-Noriega that a defendant waives his right to testify in his

defense by waiting until after the jury had reached its verdict

to inform the district court that he wanted to testify. See 189

F.3d 1089, 1094-96 (9th Cir. 1999). But nothing in PinoNoriega limits a district court’s authority to clarify an ambiguous verdict. Thus, we conclude that the district court did not

err.1

B.

[4] McCaleb also challenges his conviction on Count One

by arguing that the district court “failed to instruct on the elements of the four objects of the conspiracy, thereby lessening

the prosecution’s burden of proof.” It is well-established that

a district court errs if it fails to instruct the jury on an element

of a charged offense. See United States v. Alghazouli, 517

F.3d 1179, 1189 (9th Cir. 2008), cert. denied, 129 S. Ct. 237

(2008). Similarly, a district court plainly errs in a conspiracy

case if it “fails to instruct the jury on an element of the crime

that is the object of the conspiracy.” Id.

1McCaleb makes much of the district court’s decision to “vacate” the

verdict, arguing that a district court has no authority to vacate a verdict

because it is inconsistent. But the district court did not vacate the verdict;

it simply asked the jury to clarify an otherwise ambiguous verdict form.

500 UNITED STATES v. MCCALEB
To prove a conspiracy, the government must show “(1) an

agreement to engage in criminal activity, (2) one or more

overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime.” United States

v. Sullivan, 522 F.3d 967, 976 (9th Cir. 2008) (quotation

marks omitted). 

McCaleb argues that the district court did not instruct the

jury on the elements of manufacturing PCP, one of the four

objects of the conspiracy. The elements of manufacturing

PCP are straightforward. The government must prove that a

defendant “(1) knowingly or intentionally (2) manufactured

[PCP].” United States v. Basinger, 60 F.3d 1400, 1406 (9th

Cir. 1995). 

[5] Here, the district court’s jury instructions as a whole

sufficiently apprised the jury that the objects of the offense

had a mens rea component. McCaleb’s argument, therefore,

turns on whether the district court plainly erred by using, but

not defining, the term “manufacture.” A district court does not

commit plain error by failing to define a word when it “is a

common word which an average juror can understand and

which the average juror could have applied to the facts of

[the] case without difficulty.” United States v. Chambers, 918

F.2d 1455, 1460 (9th Cir. 1990) (holding that failure to define

“knowingly” was not plain error); see also United States v.

Garza-Juarez, 992 F.2d 896, 910 (9th Cir. 1993) (holding that

failure to define “possession” was not plain error). We conclude that the district court did not commit plain error by failing to define manufacture, particularly when it instructed the

jury that any undefined word in the instructions “means just

what you think it would mean, the ordinary meaning.”

2

2The government must prove only one of the objects to support a conspiracy conviction. See Sullivan, 522 F.3d at 976. Here, the jury “unanimously agree[d]” that McCaleb had conspired to commit each of the four

objects. Thus, because the jury’s instructions on manufacturing PCP were

sufficient to convey the elements of that offense, we need not consider

McCaleb’s challenges to the district court’s instructions for the other

objects. 

UNITED STATES v. MCCALEB 501
C.

McCaleb contends next that the district court gave a plainly

erroneous jury instruction at sentencing. After the jury found

McCaleb and his codefendant guilty, the district court

instructed the jury as follows: 

[N]ow that you have reached a verdict and having

returned a verdict of guilty as to each of the defendants, you will now be asked to complete a special

verdict form specifying whether the amount of PCP

involved in each defendant’s commission of the

offense charged in Count 1 of the first superseding

indictment exceeded a specified quantity. 

(Emphasis added.) 

McCaleb argues that this instruction constituted plain error

because “each person involved in a conspiracy may be sentenced only for the quantity of drugs that he reasonably foresaw would be distributed or manufactured, or that fell within

the scope of his agreement with his coconspirators.” 

In United States v. Becerra, this Court stated that “[u]nder

the [Sentencing] Guidelines, each conspirator may be sentenced only for the quantity of drugs that he reasonably foresaw would be distributed or that fell within the scope of his

own agreement with his co-conspirators.” 992 F.2d 960, 966

(9th Cir. 1993). But in United States v. Mesa-Farias, this

Court clarified that “[t]he reasonably foreseeable test of

Becerra limits a conspirator’s liability only for drugs possessed by a coconspirator, not for drugs possessed by the conspirator himself.” 53 F.3d 258, 260 (9th Cir. 1995). 

[6] Thus, the district court was not required to give the

“reasonably foreseeable” instruction in this case. As the district court aptly concluded in its order denying McCaleb’s

motion for a new trial: 

502 UNITED STATES v. MCCALEB
[T]he Government offered evidence that both

McCaleb [and his codefendant] possessed and participated in the delivery of amounts of precursor chemicals that were more than sufficient to produce 100

grams of PCP. Therefore the issue of foreseeability

as set forth in [Becerra] is not an issue because there

is no foreseeability requirement for the quantities

possessed by [McCaleb]. 

(Emphasis added.) And the fact that McCaleb possessed precursor chemicals, and not PCP itself, is of no moment because

the jury found McCaleb guilty of Count Two, possessing

ethyl ether either knowing or having reasonable cause to

believe that it would be used to make PCP. We conclude that

the district court did not plainly err. 

II.

McCaleb argues next that the district court improperly

admitted the testimony of a Drug Enforcement Administration

(“DEA”) forensic chemist because that testimony was insufficiently reliable under Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993). We review a district court’s decision to

admit expert opinion testimony for an abuse of discretion. See

United States v. Gonzales, 307 F.3d 906, 909 (9th Cir. 2002).

Federal Rules of Evidence 702 allows for the admission of

“scientific, technical, or other specialized knowledge” when

“(1) the testimony is based upon sufficient facts or data, (2)

the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” A district court may rely

on various factors in evaluating such evidence, including (1)

whether the theory can be or has been tested; (2) whether the

theory has been subjected to peer review; (3) whether the

error rate is known and standards exist to control the operation of the technique; and (4) whether the theory has gained

general acceptance. Daubert, 509 U.S. at 593-94. A district

UNITED STATES v. MCCALEB 503
court is not required to “mechanically apply the Daubert factors” and has “broad discretion when discharging [its]

gatekeeping function.” United States v. Hankey, 203 F.3d

1160, 1168 (9th Cir. 2000).

[7] The specific claim of error relates to permitting a DEA

forensic chemist, A. Harman, to testify about the actual yield

of PCP that could be produced in a clandestine laboratory for

purposes of establishing the fact that the conspiracy in Count

One involved more than 100 grams of PCP. We see no error.

First, Harman testified that the 25% figure was “based on

an aggregate of data compiled by the DEA” from seizures

from clandestine laboratories. Harman testified that the DEA

maintains an internal database, which contains data on the

actual yield of PCP produced in clandestine laboratories and

that she reviewed an e-mail from “headquarters,” which indicated that the average yield from such laboratories was

between 30% and 40%. Thus, Harman opined that the 25%

figure was a “conservative estimate” of actual yield in a clandestine laboratory. Harman’s testimony was not, therefore,

based on “unsubstantiated speculation and subjective beliefs.”

See Diviero v. Uniroyal Goodrich Tire Co., 114 F.3d 851, 853

(9th Cir. 1997). Moreover, Harman stated that the 25% figure

is “commonly used,” by “forensic chemists throughout DEA.”

Harman testified that there are “an average of 30 chemists in

each of the [DEA’s] eight laboratories.” See Daubert, 509

U.S. at 594 (noting that general acceptance among scientists

bears on reliability). 

Second, Harman testified that she was familiar with a study

published in the Journal of Medicinal Chemistry regarding

actual yields of PCP in a laboratory. And the district court

noted that Harman’s opinion, at least in part, is “based on

published articles.” See Daubert, 509 U.S. at 593-94 (stating

that publication is one means to establish the reliability of a

scientific theory or methodology). 

504 UNITED STATES v. MCCALEB
Finally, Harman stated that when she synthesized PCP in

her laboratory, she obtained an actual yield of about 55%. She

testified that she considered this yield when she opined that

a 25% yield in a clandestine laboratory is a conservative estimate. And Harman testified that one of the purposes of her

efforts to synthesize PCP was to “mak[e] a determination on

the issue of actual yield.” We conclude that the district court

did not abuse its discretion by admitting Harman’s testimony.

III.

[8] Finally, McCaleb challenges his sentence, arguing that

“because [his] prior convictions were not found true by a jury

beyond a reasonable doubt, they cannot be used to enhance

his sentence to life imprisonment.” Reviewing the constitutionality of his sentence de novo, United States v. FloresSanchez, 477 F.3d 1089, 1093 (9th Cir. 2007), cert. denied,

127 S. Ct. 3025 (2007), we conclude that the district court did

not improperly rely on McCaleb’s prior convictions. See, e.g.,

Almendarez-Torres v. United States, 523 U.S. 224, 226-27

(1998) (holding that a prior conviction that increases the

defendant’s sentence may be decided by the judge, not the

jury); Flores-Sanchez, 477 F.3d at 1093 (same). 

CONCLUSION

Accordingly, we AFFIRM McCaleb’s convictions and

sentence. 

UNITED STATES v. MCCALEB 505