Case: 23-60286 Document: 181-1 Page: 1 Date Filed: 05/21/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 23-60286 May 21, 2025
____________
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Donovan Sherill Bourrage; Orlando Bourrage,
Defendants—Appellants.
______________________________
Appeals from the United States District Court
for the Southern District of Mississippi
USDC Nos. 3:22-CR-45-1, 3:22-CR-45-2
______________________________
Before Richman, Willett, and Douglas, Circuit Judges.
Priscilla Richman, Circuit Judge:
A jury found Donovan and Orlando Bourrage guilty of conspiracy to
possess methamphetamine with the intent to distribute it in violation of 21
U.S.C. §§ 841 and 846. In this appeal, the defendants raise five issues,
arguing that (1) their motions to suppress were erroneously denied, (2) a lead
agent in the case should not have been permitted to testify about the meaning
of coded language in conversations about drugs, (3) there was insufficient
evidence to support the jury’s verdict, (4) the district court gave a coercive
jury instruction, and (5) the district court erred in enhancing their sentences.
We affirm.
Case: 23-60286 Document: 181-1 Page: 2 Date Filed: 05/21/2025
No. 23-60286
I
Donovan Bourrage was found guilty on two counts, and Orlando
Bourrage was found guilty on one count, of conspiracy to possess with the
intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841 and
846. Both defendants, who are cousins, appeal their convictions and their
sentences. Because Donovan and Orlando assert there was insufficient
evidence to support their respective convictions, we recount the evidence
“in the light most favorable to the jury’s verdict.” 1
A
Drug enforcement agents began investigating a suspected conspiracy
to distribute methamphetamine in Kemper County, Mississippi, and the
east-central Mississippi area in January 2020. Agent James McCombs co-led
the investigation with another agent. The investigation began with controlled
purchases from Donovan in January 2020; then, in May 2020, the court
authorized a Title III wiretap of suspected conspirators’ phones. During
trial, the jury heard conversations between Donovan, Orlando, and their
alleged co-conspirators, and Agent McCombs interpreted those
conversations as part of his testimony.
The evidence at trial reflected that on May 21, the Bourrage cousins
discussed the prices they charged for methamphetamine. Agent McCombs
interpreted Donovan’s statements as meaning that Donovan was paying a
wholesale cost of $600 or $700 per ounce of methamphetamine and selling it
for $1,200 per ounce. Later that day, on a call with Cordaryl Ford, a
distributor of methamphetamine, Donovan told Ford that he had $10,000 or
_____________________
1
United States v. Mesquias, 29 F.4th 276, 279 (5th Cir. 2022) (citing United States
v. Moreno-Gonzalez,
662 F.3d 369, 372 (5th Cir. 2011)).
2
Case: 23-60286 Document: 181-1 Page: 3 Date Filed: 05/21/2025
No. 23-60286
$11,000 and wanted Ford to “give [him] what [he] c[ould]” of a
methamphetamine delivery that was expected to arrive imminently.
On May 23, Donovan spoke with Orlando and said he wanted to buy
methamphetamine from Orlando because he had run out, but Orlando only
had marijuana. Donovan responded, “You know I don’t sell that stuff,
man.” At the end of the call, Orlando told Donovan, “Help me get rid of
them if you don’t find none,” and Donovan agreed.
On May 26, Ford told Donovan that his supply would “[b]e here in a
couple more days,” and Donovan told Ford that he would buy two pounds of
methamphetamine from him once it arrived.
On May 28, Orlando gave Donovan a “heads up” that Ford had told
him his shipment might be coming in that day but advised Donovan not to
“hit him or nothing” because “he got his funny ways sometimes.” Later
that day, Donovan and Orlando spoke again, confirming that neither of them
had heard from “him,” referring to Ford. Orlando stated that Ford “didn’t
want [Orlando and Donovan] knowing each other was [sic] going down
there” because he had his “funny ways.” Donovan responded that he “was
going to send [his] change when [Orlando was] ready,” so Orlando would
“take off and be on call.” Orlando said he “was going to send [his] by
[Donovan] because [Orlando] was at work.” Donovan answered, “Yeah,
but, uhm, either way though. You call me, I—we can do that. That’s
straight.” Orlando agreed, “It doesn’t bother me, one way or the other.”
That night, Orlando and Donovan spoke once again. They confirmed that
neither had yet heard from Ford, observed that they had each requested the
same amount of methamphetamine from Ford, and agreed that “we’ve made
enough money to sit back and wait on another” supplier other than Ford.
Unbeknownst to the cousins, agents arrested Rondarius Gowdy on
May 28 following a traffic stop when they found that he was transporting
3
Case: 23-60286 Document: 181-1 Page: 4 Date Filed: 05/21/2025
No. 23-60286
drugs. Gowdy testified at Donovan and Orlando’s trial that he had the drugs
because someone offered him money if he “accept[ed] some marijuana
through the mail, and all [Gowdy] had to do [was] just drop it off” at the
home of Cordaryl Ford. The court also received into evidence Gowdy’s plea
agreement, and a prosecutor read aloud the factual basis of that plea
agreement. Gowdy confirmed that the plea agreement accurately described
the following events. Donovan and Orlando ordered methamphetamine
from Ford “[o]n or about May the 28th,” and the same day, officers arrested
Gowdy after a traffic stop. At that traffic stop, the officers discovered “a
package containing seven individually wrapped packages,” five of which
“contained suspected methamphetamine,” while two “contained suspected
marijuana.”
On the morning of May 29, Orlando texted Donovan, “They got Ford.
Don’t call that phone.” About fifteen minutes later, Orlando called
Donovan, and they discussed Gowdy’s arrest in Kemper County. Orlando
stated, “Somebody talking,” and Donovan responded, “Sure is.” They then
discussed the difficulties they had experienced in obtaining
methamphetamine from Arizona in recent months.
B
A subsequent wiretap obtained recordings of calls between Donovan
and a new supplier, Marice Boler, in July 2020. During his testimony, Boler
identified Donovan as the person to whom he had distributed
methamphetamine on July 6, 2020. Boler explained that a relative had asked
him to deliver methamphetamine to Donovan. After listening to a call
recorded right before Donovan and Boler met that day, Boler testified that
they were meeting up to “[s]ell meth,” and Boler would sell a pound of
methamphetamine to Donovan. The jury then heard a call between the two
men that took place on July 6 in which Donovan asked if Boler got his text,
4
Case: 23-60286 Document: 181-1 Page: 5 Date Filed: 05/21/2025
No. 23-60286
and Boler responded, “You talking about the same thing, right?” Donovan
then said he had “enough for a half now. . . . If you don’t wanna break it
down, just give me a lil’ minute.” Boler answered, “I’ll break it
down . . . Meet me in a minute.” Boler testified that “the same thing” meant
“meth,” and “a half” meant a “half pound” of “meth.” In the next call,
Boler told Donovan he “could probably have [Donovan] a half” and it would
probably be “Thursday or something,” to which Donovan responded,
“[B]ring that half for me.” Boler testified that Donovan was trying to obtain
half a pound of meth.
During Boler’s testimony, the jury also heard a call between him and
Donovan from July 11 when Donovan asked Boler to “bring [him] an eight”
and said he would “give [Boler] a dollar” for it. Boler testified that “an
eight” referred to a “[h]alf pound of meth,” and “a dollar” meant a hundred
dollars. In a conversation just over an hour later, Boler told Donovan that he
was not in town and did not have anybody available to meet him, and
Donovan responded, “I still got them [two] you sold me. I was just trying to
stack up, bro.” Boler then responded that he would “have it for [Donovan]”
when he returned to town. Donovan answered, “I don’t be moving sh*t, bro.
I just put that sh*t up and wait ‘til it get dry again, boy.” Boler testified that
they were still talking about a half pound of methamphetamine, and the
“two” that Donovan mentioned meant two pounds of methamphetamine
that Boler had already sold him. Boler additionally testified that he had been
indicted for conspiracy to distribute methamphetamine and that he had
pleaded guilty.
In September 2020, several months after the July phone
conversations, deputies stopped Orlando for speeding and found that he was
in possession of a 9mm semi-automatic pistol and 1,319.68 grams of
marijuana, which appears to have been purchased from another supplier,
Montreal Bourrage.
5
Case: 23-60286 Document: 181-1 Page: 6 Date Filed: 05/21/2025
No. 23-60286
C
In April 2022, a grand jury indicted Donovan and Orlando for
conspiracy to possess with intent to distribute methamphetamine “beginning
in May 2020, and continuing to on or about May 29, 2020.” The grand jury
additionally indicted Donovan for conspiracy to possess with intent to
distribute “a mixture or substance containing a detectable amount of
methamphetamine” during a period “beginning on or about July 6, 2020, and
continuing to on or about July 10, 2020.”
Prior to trial, Donovan and Orlando filed a motion to suppress the
evidence obtained via wiretaps, which the district court denied. The case
then proceeded to trial in May 2023 in the Southern District of Mississippi,
and following a five-day trial, a jury found the defendants guilty on all counts.
The district court sentenced Orlando in February 2024, and his
sentence included a three-level enhancement pursuant to United States
Sentencing Guidelines § 3B1.1(b) for managing or supervising the conspiracy
and a two-level enhancement pursuant to Guidelines § 2D1.1(b)(1) for
possessing a gun. After initially sentencing Donovan in February 2024, the
district court resentenced him in March 2024, and his sentence included a
three-level enhancement pursuant to Guidelines § 3B1.1(b) for managing or
supervising the conspiracy. Both defendants timely appealed.
II
Title III of the Omnibus Crime Control and Safe Streets Act of 1968
permits “[a]ny aggrieved person in any trial, hearing, or proceeding” to
“move to suppress the contents of any wire or oral communication
intercepted pursuant to this chapter, or evidence derived therefrom, on the
grounds that . . . (i) the communication was unlawfully intercepted; [or]
6
Case: 23-60286 Document: 181-1 Page: 7 Date Filed: 05/21/2025
No. 23-60286
(ii) the order of authorization or approval under which it was intercepted is
insufficient on its face.” 2
Donovan and Orlando argue that the district court erred in denying
their motion to suppress evidence obtained through wiretaps (A) by ruling
that they did not have standing to challenge the wiretaps; (B) by ruling that
the motion challenging the wiretaps was untimely; (C) by not ordering a
Franks 3 hearing; and (D) by not recognizing that the orders authorizing the
wiretaps were facially insufficient.
Orlando filed his motion to suppress and a supporting attorney
affidavit on May 4, 2023. Orlando then filed a memorandum in support of
the motion to suppress on May 8, 2023, and Donovan filed a motion to join
Orlando’s motion to suppress that same day. After a hearing on May 22,
2023, the district court denied the motion to suppress on the grounds
covered in “the Government’s argument in response.” The Government
maintains that those grounds for dismissal included untimeliness, lack of
standing, and insufficiently specific allegations.
A
Assuming without deciding that we must reach the standing issue, we
hold that the defendants had standing. Title III allows “[a]ny aggrieved
person” to “move to suppress the contents of any wire or oral
communication intercepted pursuant to this chapter.” 4 The statute defines
an “aggrieved person” as “a person who was a party to any intercepted wire,
_____________________
2
18 U.S.C. § 2518(10)(a); see Omnibus Crime Control and Safe Streets Act of 1968,
Pub. L. No. 90-351, § 802,
82 Stat. 197, 221 (codified as amended at
18 U.S.C.
§ 2518(10)(a)).
3
Franks v. Delaware, 438 U.S. 154 (1978).
4
18 U.S.C. § 2518(10)(a); see Omnibus Crime Control and Safe Streets Act § 802.
7
Case: 23-60286 Document: 181-1 Page: 8 Date Filed: 05/21/2025
No. 23-60286
oral, or electronic communication or a person against whom the interception
was directed.” 5 Based on the Supreme Court’s determination that “the
wiretap statute incorporated existing Fourth Amendment standing
principles,” 6 we have interpreted the statutory definition as meaning that
“only ‘one who participated in the intercepted conversation or on whose
premises the conversation occurred’ ha[s] standing to challenge the fruits of
an illegal wiretap.” 7 The party seeking suppression has “the burden of
proving, by a preponderance of the evidence, that the evidence in question
was obtained in violation of his Fourth Amendment rights.” 8 “That burden
includes establishing standing to contest the evidence.” 9 “Whether a
defendant has standing to question the legality of a search is a question of law
subject to de novo review,” and “[f]actual findings supporting the
determination of the standing question are reviewed for clear error.” 10
The Government argues that this burden required each defendant to
“establish that his communication was intercepted on a particular call or text
message.” The Government cites United States v. Kelley 11 to support that
view, but in Kelley, we stated that the standing requirements were met simply
_____________________
5
Id. § 2510(11).
6
United States v. Kelley, 140 F.3d 596, 604 n.7 (5th Cir. 1998) (citing Alderman v.
United States,
394 U.S. 165, 175 n.9 (1969)).
7
Id. (quoting United States v. Scasino,
513 F.2d 47, 50 (5th Cir. 1975)).
8
United States v. Turner, 839 F.3d 429, 432 (5th Cir. 2016) (quoting United States
v. Smith,
978 F.2d 171, 176 (5th Cir. 1992)).
9
Id. (citing United States v. Iraheta,
764 F.3d 455, 460-61 (5th Cir. 2014)).
10
Iraheta, 764 F.3d at 460 (citing United States v. Riazco,
91 F.3d 752, 754 (5th Cir.
1996)) (providing the standard of review for a district court’s determination of whether a
defendant had standing to move to suppress evidence allegedly obtained in violation of his
Fourth Amendment rights).
11
140 F.3d 596 (5th Cir. 1998).
8
Case: 23-60286 Document: 181-1 Page: 9 Date Filed: 05/21/2025
No. 23-60286
“[b]ecause each of the above-named appellants participated in the
complained-of intercepted communications” without any analysis of
particular messages or calls.12 In the original motion to suppress, Orlando
asserted that he was an “‘aggrieved person’ within the meaning of 18
U.S.C.A. § 2510(11),” though neither he nor Donovan expressly asserted in
that motion or in any other district court filing that they had participated in
any conversations captured on the wiretaps.
The affidavit supporting the application for the May 2020 wiretap
named both Donovan and Orlando as targets whose electronic
communications the Government was aiming to intercept, and the affiant
certified his belief that Donovan was using one of the target telephones. In
an affidavit supporting an application for a subsequent wiretap, a federal
agent certified his belief that Donovan’s and Orlando’s voices had been
captured in conversations recorded in the May 2020 wiretap. Additionally,
in a hearing regarding the motion to suppress before trial, Donovan’s
attorney argued, “[T]he essence of [the Government’s] case is that that was
Donovan Bourrage on that phone, and on several of those calls, he was talking
to his brother [sic], Mr. Bourrage,” and therefore, “that in and of itself
establishes that the parties have standing to raise this issue before the
[c]ourt.” In this appeal, Orlando argues that he and Donovan have standing
because the Government “identified [Orlando] as the target of the
investigation” and government agents “testif[ied] that the intercepts did in
fact involve [Orlando] (and Donovan) who was the target thereof.” The trial
record further makes clear that the defendants’ voices appear frequently in
the wiretapped calls and that their words appear frequently in the text
messages. It would blink reality to hold that they did not participate in the
_____________________
12
Id. at 604 n.7.
9
Case: 23-60286 Document: 181-1 Page: 10 Date Filed: 05/21/2025
No. 23-60286
conversations, which was all that this court required in Kelley, and attorney
admissions establish that participation. The Ninth Circuit has recognized
standing to challenge a wiretap in an analogous situation. 13 Under these
circumstances, the defendants had standing to challenge the wiretaps.
B
“We review the district court’s denial of a motion to suppress as
untimely for abuse of discretion.” 14 “Rule 12(c) of the Federal Rules of
Criminal Procedure authorizes a district court to set a deadline for the filing
of pretrial motions, including motions to suppress evidence.” 15 Filing a
motion to suppress after the deadline set for pretrial motions renders the
motion “untimely,” though the court may consider the motion “if the party
shows good cause.” 16 We have previously stated that “a showing of good
cause requires a showing of cause and prejudice,” but we have not yet “ruled
_____________________
13
See United States v. Oliva, 705 F.3d 390, 393, 395 (9th Cir. 2012) (“Irrespective
of Oliva’s refusal to admit that the voices in the conversations intercepted included his own
or that any of the intercepts took place on his premises, Oliva was one of the individuals
‘against whom the interception[s] w[ere] directed.’ The affidavits in support of the
surveillance orders included investigators’ statements certifying their beliefs that he was
using the individual cellular phones at issue. Oliva’s conversations were the target of the
surveillance. We therefore hold that Oliva has standing.” (alterations in original) (citations
omitted) (first quoting
18 U.S.C. § 2510(11); and then citing United States v. Benjamin,
72
F. Supp. 2d 161, 185 (W.D.N.Y. 1999))).
14
United States v. Dennis, 41 F.4th 732, 739 (5th Cir. 2022) (citing United States v.
Oliver,
630 F.3d 397, 410 (5th Cir. 2011)).
15
Oliver, 630 F.3d at 411 (citing Fed. R. Crim. P. 12(c) (“The court may, at the
arraignment or as soon afterward as practicable, set a deadline for the parties to make
pretrial motions and may also schedule a motion hearing. If the court does not set one, the
deadline is the start of trial.”)).
16
Dennis, 41 F.4th at 739 (first citing Fed. R. Crim. P. 12(c)(3); and then citing
United States v. Williams,
774 F. App’x 871, 876 (5th Cir. 2019) (per curiam)).
10
Case: 23-60286 Document: 181-1 Page: 11 Date Filed: 05/21/2025
No. 23-60286
on the standard of review of a district court’s finding of lack of good cause
under Rule 12(c)(3).” 17
The district court initially set this case for trial on June 13, 2022, with
a dispositive motion deadline twenty days before trial commenced and a non-dispositive motion deadline ten days before the dispositive motion deadline.
After multiple continuances, the court reset the trial date for May 22, 2023,
without mentioning any changes to the motion deadlines. The Government
appears to have assumed that the final resetting of the trial date also reset the
motion deadlines. Under that assumption, the deadline for dispositive
motions would have been May 2, 2023, and the deadline for non-dispositive
motions would have been April 21, 2023. Because the motion to suppress
was filed on May 4, 2023, after any of the potential deadlines, we accept the
Government’s proffered deadlines. Furthermore, the parties agree that the
dispositive motion deadline applies here. Therefore, we analyze the
timeliness of the motion to suppress based on the May 2 dispositive motion
deadline.
The May 4 submission missed the dispositive motion deadline by two
days, so the defendants do not dispute that it was untimely. Instead,
Donovan argues that “Orlando’s trial counsel answered” the Government’s
argument that the motion was untimely “when she informed the court” that
the delay was “not the fault of the defense for any late motion” but rather
“the fault of the untimely disclosures” by the Government “of material
evidence . . . that was collected and [that was] intended to [be] use[d] in this
case that wasn’t given to [the defense] until just days before trial.” Donovan
continues to quote Orlando’s counsel as having stated at the hearing that she
_____________________
17
Id. at 739-40 (citing Williams, 774 F. App’x at 876-77).
11
Case: 23-60286 Document: 181-1 Page: 12 Date Filed: 05/21/2025
No. 23-60286
“was not his attorney at [the dispositive deadline date]. . . . so the
deadline . . . had already passed at that time.”
The argument that Orlando’s attorney was new to the case does not
excuse the delay because she became his attorney in September 2022,
approximately eight months before the dispositive motion deadline. As to
the allegedly untimely disclosures, neither defendant explains in his briefing
before this court which Government disclosures were allegedly untimely or
how those delayed disclosures brought the alleged lack of probable cause for
the wiretaps to the defense’s attention after the deadline. In her affidavit
filed in the district court, Orlando’s trial counsel pointed to two allegedly
delayed disclosures: (1) a video interview with a codefendant that was,
according to Orlando’s attorney, disclosed to the defense on May 1, 2023;
and (2) the files containing the wiretapped calls that were initially disclosed
in November 2022 and January 2023, then re-produced on April 12, 2023,
after the defense told the Government that the initially disclosed files were
corrupted.
In his memorandum supporting the motion to suppress, Orlando
identified a number of alleged misrepresentations in the affidavits supporting
the applications for wiretaps that, he argued, called into question the probable
cause justifying the wiretaps. In describing the materials that brought these
alleged flaws to the defendants’ attention, however, the memorandum cites
only once to the interview with the codefendant and not at all to the files
containing the wiretapped calls. Instead, many of the alleged deficiencies
regarding the affidavits would have been apparent on the face of the affidavits
themselves, without additional discovery.
Orlando’s attorney briefly mentioned at the hearing that the affidavits
and other investigative documents were initially “redacted” or “omitted” at
certain parts, but she never explained which parts those were, why they were
12
Case: 23-60286 Document: 181-1 Page: 13 Date Filed: 05/21/2025
No. 23-60286
material, or when the defense received unredacted versions. Pertaining to
the alleged delay in producing the video, the Government stated at the
hearing that the video was produced to Orlando’s counsel “first on
November the 15th of 2022,” and then “again” the video “was ready for
pickup on April the 28th of 2023,” and the video was “picked up by counsel
on May the 1st of 2023.” This timeline weakens Orlando’s attorney’s
allegation that she could not access that video interview until May 1, 2023.
Given these circumstances, the defendants did not make a sufficient showing
of good cause for the late filing of the motion to suppress, and, moreover,
they made no attempt to show prejudice. Therefore, the district court did
not abuse its discretion in denying the motions as untimely.
Our analysis of the motion to suppress, however, does not end there.
“When a pretrial motion is denied as untimely, we review the denial of the
motion for plain error.” 18 Demonstrating plain error requires that the
defendants “show a forfeited error that is clear or obvious, which affects
[their] substantial rights.” 19 If such a showing is made, we have “the
discretion to correct the error, but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” 20
C
Donovan argues that the wiretaps were not supported by probable
cause, so there should have been a Franks hearing regarding the veracity of
the affidavits supporting the wiretap applications. “An order authorizing a
wiretap, like an ordinary search warrant, must be supported by a finding of
_____________________
18
Id. at 740 (citing United States v. Vasquez, 899 F.3d 363, 373 (5th Cir. 2018)).
19
Id.
20
Id.
13
Case: 23-60286 Document: 181-1 Page: 14 Date Filed: 05/21/2025
No. 23-60286
probable cause.” 21 “Probable cause exists when there are reasonably
trustworthy facts which, given the totality of the circumstances, are sufficient
to lead a prudent person to believe that the items sought . . . constitute fruits,
instrumentalities, or evidence of a crime.” 22 In Franks v. Delaware, 23 the
Supreme Court held that
where the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defendant’s
request. 24
Accordingly, “[t]o obtain a Franks hearing, [Donovan] ‘needed to make a
“substantial preliminary showing” that the affiant[’s] statements were
deliberately false or made with reckless disregard for the truth.’” 25 Although
Franks concerned search warrants, 26 we have previously considered whether
a Franks hearing was merited to determine the veracity of an affidavit
supporting an application for a Title III wiretap. 27 “To resolve a challenge
to an affidavit’s veracity,” we “first determine if it contains a false statement
or material omission,” and if it does, we then “decide whether ‘the false
_____________________
21
United States v. Collins, 972 F.2d 1385, 1409 (5th Cir. 1992).
22
United States v. Kendrick, 980 F.3d 432, 440 (5th Cir. 2020) (quoting Kohler v.
Englade,
470 F.3d 1104, 1109 (5th Cir. 2006)).
23
438 U.S. 154 (1978).
24
Id. at 155-56.
25
United States v. Minor, 831 F.3d 601, 604 (5th Cir. 2016) (quoting United States
v. Thomas,
627 F.3d 146, 159 (5th Cir. 2010)).
26
Franks, 438 U.S. at 155.
27
Kendrick, 980 F.3d at 439-42.
14
Case: 23-60286 Document: 181-1 Page: 15 Date Filed: 05/21/2025
No. 23-60286
statement [or omission was] made intentionally or with reckless disregard for
the truth.’” 28 Lastly, we ask, “if the false statement is excised, does the
remaining content in the affidavit fail to establish probable cause?” 29 As
noted above, because Donovan was untimely in submitting his motion to
dismiss, we review his challenge to the lack of a Franks hearing for plain
error. 30
The Government argues that Donovan’s Franks-hearing issue is
waived because he did not request a Franks hearing in the district court.
However, Orlando requested a hearing in the affidavit supporting his motion
to suppress and cited Franks to substantiate that request in his supporting
memorandum. Donovan joined that motion. The Government also
responded to the Franks argument before the district court in its response in
opposition to the motion to suppress. Therefore, the issue was not forfeited.
Regarding the merits, Donovan does not identify on appeal which
statements in the affidavits were “deliberately false or made with reckless
disregard for the truth.” 31 Instead, he cites to the memorandum in support
of the motion to suppress submitted to the district court and argues that the
Government did not dispute the alleged misrepresentations but rather
_____________________
28
Id. at 440 (alteration in original) (quoting United States v. Ortega,
854 F.3d 818,
826 (5th Cir. 2017)).
29
Id. (quoting Ortega,
854 F.3d at 826).
30
United States v. Dennis, 41 F.4th 732, 740 (5th Cir. 2022) (“When a pretrial
motion is denied as untimely, we review the denial of the motion for plain error.” (citing
United States v. Vasquez,
899 F.3d 363, 373 (5th Cir. 2018))).
31
United States v. Minor, 831 F.3d 601, 604 (5th Cir. 2016) (quoting United States
v. Thomas,
627 F.3d 146, 159 (5th Cir. 2010)).
15
Case: 23-60286 Document: 181-1 Page: 16 Date Filed: 05/21/2025
No. 23-60286
“attempted to justify the affiant’s action.” Therefore, we have analyzed the
filings submitted to the district court.
Before the district court, the defendants made no “substantial
preliminary showing” of any alleged falsehoods in the affidavit supporting
the May 20, 2020 intercept order. Though the memorandum at law
mentioned that order, it only discussed allegedly false statements in the
affidavits supporting the June 22, 2020 order and the June 30, 2020 order.
Additionally, only Donovan challenges probable cause in the affidavits on
appeal, and he was found guilty of partaking in two conspiracies, the first
“beginning in May 2020, and continuing to on or about May 29, 2020,” and
the second “beginning on or about July 6, 2020, and continuing to on or about
July 10, 2020.” He does not challenge any sentencing enhancement
pertaining to relevant conduct that occurred outside of those dates.
Therefore, all wiretapped calls pertaining to those time frames would have
occurred either in May 2020 or in early July 2020. Only the May 20 and June
30 wiretap orders would have recorded calls that occurred on those dates.
Therefore, we only consider challenged statements that appear in the
affidavit underlying the June 30 order, since there are no allegations
regarding the May 20 order.
In reviewing the district court’s denial of a Franks hearing when there
has been no determination regarding the truth or falsity of alleged
misstatements, we have previously reviewed the affidavits as if the
challenged statements were not present to see whether “[p]robable cause still
exists even if the allegedly false statements are excised.” 32
In the district court, the defendants argued that the affidavit
underlying the June 30 order contained three allegedly false statements:
_____________________
32
See, e.g., Kendrick, 980 F.3d at 440-42.
16
Case: 23-60286 Document: 181-1 Page: 17 Date Filed: 05/21/2025
No. 23-60286
(1) that agents made a “‘controlled delivery’ of a package containing 13
pounds of methamphetamine and one pound of marijuana”; (2) that “the
‘controlled delivery’ was addressed to ‘a non-existent residence on Tamola
Road’”; and (3) that Rondarius Gowdy, the man arrested while transporting
the package, “stated to officers that [he] was paid $500.00 to deliver the
package to Cordarryl [sic] [Ford] and that Gowdy provided officers the
telephone number for [] Ford.”
Even without those statements, the affidavit contains information to
establish probable cause that Donovan was participating in a conspiracy to
distribute methamphetamine. The affidavit recounts: (1) confidential
informants had purchased methamphetamine from Donovan on five separate
occasions in January and February 2020; (2) Donovan had a phone
conversation in mid-May 2020 in which he told the caller that he had “ten
thousand . . . eleven thousand on [him]” but that if the caller could not “do
it all, then just give [Donovan] what” he could, and the affiant interpreted
this conversation as Donovan having ten thousand or eleven thousand dollars
in cash and wanting to purchase as much methamphetamine as the caller
could sell him; (3) Donovan had a separate call with the same caller later that
day that the affiant interpreted as the caller telling Donovan that he was about
to sell his last four ounces of methamphetamine; (4) agents intercepted a
package containing thirteen pounds of methamphetamine and one pound of
marijuana that Rondarius Gowdy was transporting; (5) the day after
Gowdy’s arrest, Donovan spoke on the phone with Nathan Arnold, who had
been arrested in 1997 for two counts of sales of crack cocaine, about Gowdy’s
arrest; in the latter conversation, Donovan opined that there should not have
been marijuana mixed with the methamphetamine because that makes it
easier for dogs to sniff the drugs; Donovan also affirmed that he was going to
“shut it down” for a bit after the arrest; (6) other intercepts indicated that
Donovan and Orlando “had [each] negotiated for as many as three pounds of
17
Case: 23-60286 Document: 181-1 Page: 18 Date Filed: 05/21/2025
No. 23-60286
the seized methamphetamine;” (7) in mid-June 2020, Donovan had a text
conversation with Terrance Bourrage that the affiant interpreted as Terrance
telling Donovan to give an unknown person ten small packages of
methamphetamine and that Terrance would bring Donovan the money the
next day; (8) after that conversation with Terrance, Donovan sent Terrance
another text saying, “We can’t talk like that on the phone bro,” which the
affiant interpreted as Donovan directing Terrance “not to discuss in detail
the prices of methamphetamine or how they conduct methamphetamine
transactions over the phone.”
This information, devoid of the challenged statements, was sufficient
to establish probable cause. The court could infer that Donovan had a recent
history of selling methamphetamine in early 2020 based on the sales to
confidential informants. Additionally, the conversations with the caller in
mid-May 2020 show Donovan’s intent to purchase large quantities of
methamphetamine. The court could infer from this that Donovan had
ongoing methamphetamine transactions that involved purchasing large
quantities and reselling methamphetamine to others. The information about
Gowdy’s arrest coupled with the interest Donovan showed in the arrest and
seized drugs in the conversation with Arnold, plus the information that he
had negotiated to purchase some of the seized methamphetamine, is
sufficient to infer a connection between Donovan and the seized
methamphetamine. Finally, Donovan’s conversations with Terrance
suggest an ongoing methamphetamine distribution scheme and that
Donovan knew his activities were illegal, so they should not discuss them
directly over the phone. Altogether, “the totality of the circumstances
18
Case: 23-60286 Document: 181-1 Page: 19 Date Filed: 05/21/2025
No. 23-60286
supports a probable cause finding.” 33 Therefore, the district court did not
err, let alone plainly err, in not holding a Franks hearing.
D
Finally, Donovan argues that the orders authorizing the wiretaps were
facially insufficient because they did not identify the “high-level Justice
Department official” who authorized the applications. In Donovan’s reply,
he acknowledges that he did not preserve this error in the district court, so
he argues that it should be reviewed for plain error. In this circuit, a “failure
to raise specific issues or arguments in pre-trial suppression proceedings
operates as a waiver of those issues or arguments for appeal.” 34
“Nonetheless, our cases identifying such waiver have often proceeded to
evaluate the issues under a plain error standard for good measure.” 35
Under the statute, “[e]ach order authorizing or approving the
interception of any wire, oral, or electronic communication under this
chapter shall specify . . . the identity of the agency authorized to intercept the
communications, and of the person authorizing the application.” 36 The statute
specifies that those empowered to authorize such an application include “any
Deputy Assistant Attorney General or acting Deputy Assistant Attorney
_____________________
33
Id. at 441-42.
34
United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 2010) (emphasis omitted)
(quoting United States v. Pope,
467 F.3d 912, 918-19 (5th Cir. 2006)).
35
Id. (citing United States v. Baker,
538 F.3d 324, 329 (5th Cir. 2008)).
36
18 U.S.C. § 2518(4)(d) (emphasis added).
19
Case: 23-60286 Document: 181-1 Page: 20 Date Filed: 05/21/2025
No. 23-60286
General in the Criminal Division or National Security Division specially
designated by the Attorney General.” 37
In the present case, the “orders” that “authorize[]” agents to
“intercept wire and electronic communications” to and from two separate
telephone numbers name the Deputy Assistant Attorneys General who
authorized the applications for the wiretaps. The orders specify that these
Deputy Assistant Attorneys General are “duly designated official[s] of the
Criminal Division, United States Department of Justice, who ha[ve] been
specially designated by the Attorney General of the United States . . . to
exercise the power conferred on that official by [18 U.S.C. § 2516].” Because
these orders name the required Justice Department officials, Donovan is
incorrect in arguing that the orders are “insufficient on [their] face[s].” 38
Therefore, the district court did not err in denying the motion to suppress on
this ground.
III
Orlando argues that the district court erred by admitting Agent James
McCombs’s testimony explaining the meaning of drug-related code words.
Orlando “[s]pecifically” cites McCombs’s explanation that the term “a bird
and a half” means three pounds. The Government responds only to this
specific testimony, and Orlando does not address the issue in his reply.
McCombs explained the meaning of other code words during his testimony,
and Orlando appears to challenge McCombs’s code-word testimony writ
large. We will assume without deciding that Orlando properly presented a
challenge to all of McCombs’s code-word testimony.
_____________________
37
Id. § 2516(1).
38
See id. § 2518(10)(a)(ii).
20
Case: 23-60286 Document: 181-1 Page: 21 Date Filed: 05/21/2025
No. 23-60286
The Government offered McCombs’s code-word testimony as lay
opinion testimony under Rule 701, and the defendants objected at trial.
“This Court reviews preserved challenges to rulings on the admission of lay
and expert testimony for abuse of discretion, subject to harmless error
analysis.” 39 “Under the harmless error doctrine, even if the district court
abuses its discretion in admitting or excluding evidence, we will affirm
‘[u]nless there is a reasonable possibility that the improperly admitted
evidence contributed to the conviction.’” 40
Under Federal Rule of Evidence 701,
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is: (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. 41
Although “[d]rug traffickers’ jargon is a specialized body of knowledge,
familiar only to those wise in the ways of the drug trade, and therefore a fit
subject for expert testimony,” we have “not limited drug slang testimony to
experts in all cases.” 42 Rather, 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.” 43
_____________________
39
United States v. Akins, 746 F.3d 590, 597 (5th Cir. 2014).
40
United States v. Yanez Sosa, 513 F.3d 194, 201 (5th Cir. 2008) (alteration in
original) (quoting United States v. Mendoza-Medina,
346 F.3d 121, 127 (5th Cir. 2003)).
41
Fed. R. Evid. 701.
42
Akins, 746 F.3d at 599 (alteration in original) (quoting United States v. Griffith,
118 F.3d 318, 321 (5th Cir. 1997)).
43
Id. (citing United States v. Miranda,
248 F.3d 434 (2001)).
21
Case: 23-60286 Document: 181-1 Page: 22 Date Filed: 05/21/2025
No. 23-60286
Indeed, “[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.” 44 This
comports with Rule 701 because an “agent’s ‘extensive participation in the
investigation of this conspiracy’ allow[s] the agent to ‘form opinions’ about
the code words ‘based on his personal perceptions.’” 45
In United States v. Akins, 46 we permitted the lead investigator of a drug
conspiracy case to testify about the meaning of coded language “largely based
on first-hand observations in this specific investigation.” 47 We emphasized
that the agent
was extensively involved in the investigation of the conspiracy.
As the lead investigator on the case, [he] had conducted
surveillance on a number of participants in the drug
organization, and claimed to have reviewed every wiretapped
phone call, reviewed every transcript offered into evidence,
listened to ‘every second’ of all relevant conversations, and
spoken with a number of informants, co-conspirators, and the
defendants themselves. [The agent] repeatedly explained how
this investigation led him to deduce the meaning of drug code
words. 48
Consequently, we held that “[a] lthough [the agent] may have drawn in part
from his law enforcement experience, it was not an abuse of discretion for the
district court to rule that [the agent’s] conclusions were largely based on first-
_____________________
44
Id. (alteration in original) (quoting United States v. El-Mezain,
664 F.3d 467, 514
(5th Cir. 2011)).
45
El-Mezain, 664 F.3d at 514 (quoting Miranda,
248 F.3d at 441).
46
746 F.3d 590 (5th Cir. 2014).
47
Akins, 746 F.3d at 600.
48
Id. at 599-600 (emphasis added).
22
Case: 23-60286 Document: 181-1 Page: 23 Date Filed: 05/21/2025
No. 23-60286
hand observations in this specific investigation.” 49 In a more recent case, we
again permitted a similar lead investigator to testify under Rule 701 about the
meaning of coded language based on his “extensive” participation in the
case. 50 There, we emphasized the agent’s participation but did not consider
whether the agent repeatedly explained how he deduced the meaning of the
code words. 51
In this case, the Government laid a foundation for McCombs’s
opinion testimony. McCombs testified that he was “the case agent for [the
Mississippi Bureau of Narcotics] as well as the case agent for [the Drug
Enforcement Administration]” and that he “oversaw the parts of [this]
investigation.” He testified that he employed numerous investigatory
methods during the investigation over several months. He testified that he
monitored both live and recorded communications from the wiretap. When
asked how many wire interceptions involving drug-related communications
he had listened to in this case, McCombs suggested he had listened to at least
hundreds, answering, “There were way over a thousand calls on here, and
I’ve listened to—[] I don’t want to tell you every call because some calls may
have not been pertinent and there was no reason for me to listen to.” He
testified that he interpreted code words in this investigation. He also
explained his interpretive process: he first noticed that a word seemed outof-place and then considered the context of the conversations in their entirety
to understand the word. McCombs further testified about specific codes,
oftentimes in response to the Government asking him to answer “based upon
[his] knowledge of the investigation.”
_____________________
49
Id. at 600.
50
United States v. Hill, 63 F.4th 335, 356 (5th Cir. 2023).
51
See id.
23
Case: 23-60286 Document: 181-1 Page: 24 Date Filed: 05/21/2025
No. 23-60286
Although McCombs did not “repeatedly explain[] how this
investigation led him to deduce the meaning of drug code words,” 52 our cases
since Akins have not emphasized this as a requirement. 53 McCombs did
explain at least once how he deduced the meaning of drug code words, and
he repeatedly based his testimony on his involvement in the investigation.
Orlando argues otherwise, asserting that McCombs “did not testify primarily
based on the underlying conspiracy investigation.” To be sure, at one point
during cross-examination when asked, “If we’re looking for this book that
defines what’s code for drug language, where do we buy that?,” McCombs
answered, “Go to work at the police department in 1998.” This answer
suggests that McCombs was relying in part on his professional experience
prior to this investigation to understand these coded conversations.
However, in the next exchange, when asked, “When you’re saying these
[interpretations] are how [the words are] used, these are based on what you
believe; is that correct?,” McCombs responded, “What I learned through
the investigation, yes, sir.” Considering these exchanges together, it was
reasonable for the district court to determine that some of McCombs’s
background in drug codes came from his career experience, but when
interpreting words in this case, he based these specific interpretations on
“what [he] learned through the investigation.” Therefore, the district court
did not abuse its discretion in admitting this testimony.
IV
Donovan and Orlando both argue that the Government presented
insufficient evidence to prove beyond a reasonable doubt that they conspired
to possess methamphetamine with the intent to distribute it. Proving “[a]
_____________________
52
Akins, 746 F.3d at 600 (emphasis added).
53
See Hill, 63 F.4th at 356.
24
Case: 23-60286 Document: 181-1 Page: 25 Date Filed: 05/21/2025
No. 23-60286
drug-trafficking conspiracy requires” showing “(1) the existence of an
agreement between two or more persons to violate narcotics laws,
(2) knowledge of the conspiracy and intent to join it, and (3) voluntary
participation in the conspiracy.” 54
The “agreement to engage in the conspiracy alleged” need not have
been express; “[a] tacit, mutual agreement with common purpose, design,
and understanding will suffice.” 55 The jury may “infer[]” that such an
agreement existed based on “testimony and [] other circumstantial
evidence.” 56 Moreover, “[c]oncert of action can indicate agreement and
voluntary participation” in the conspiracy. 57
Though “[i]t is well settled that evidence of a buyer-seller relationship
is not, by itself, sufficient to support a conviction for conspiracy,” “the
buyer-seller exception is meant to ‘prevent[] a single buy-sell agreement,
which is necessarily reached in every commercial drug transaction, from
automatically becoming a conspiracy to distribute drugs.’” 58 The exception
“shields mere acquirers and street-level users, who would otherwise be guilty
of conspiracy to distribute, from the more severe penalties reserved for
_____________________
54
United States v. McClaren, 13 F.4th 386, 406 (5th Cir. 2021) (quoting United
States v. Nieto,
721 F.3d 357, 367 (5th Cir. 2013)).
55
United States v. Daniels, 723 F.3d 562, 575 (5th Cir. 2013) (quoting United States
v. Zamora,
661 F.3d 200, 209) (5th Cir. 2011)).
56
United States v. Kendrick, 980 F.3d 432, 442 (5th Cir. 2020) (quoting Zamora,
661 F.3d at 209).
57
United States v. Lopez, 979 F.2d 1024, 1029 (5th Cir. 1992).
58
United States v. Jones, 969 F.3d 192, 198 (5th Cir. 2020) (alteration in original)
(first quoting United States v. Mata,
491 F.3d 237, 241 (5th Cir. 2007); and then quoting
United States v. Delgado,
672 F.3d 320, 333 (5th Cir. 2012) (en banc)).
25
Case: 23-60286 Document: 181-1 Page: 26 Date Filed: 05/21/2025
No. 23-60286
distributers.” 59 “Thus, ‘[w]hile it is true that a buyer-seller relationship,
without more, will not prove a conspiracy, . . . [o]ne becomes a member of a
drug conspiracy if he knowingly participates in a plan to distribute drugs,
whether by buying, selling or otherwise.’” 60 “Evidence of ‘a strong level of
trust and an ongoing, mutually dependent relationship’” also “changes the
relationship to a conspiracy to distribute drugs.” 61
“When a defendant timely moves for a judgment of acquittal,” as
Donovan and Orlando did here, we “review challenges to the sufficiency of
evidence de novo, but view the evidence in the light most favorable to the
verdict.” 62 Because this review is “highly deferential to the jury’s verdict,”
we “will reverse only if no rational jury could have found defendants guilty
beyond a reasonable doubt.” 63
A
Count one charged both Donovan and Orlando with conspiring “to
possess with intent to distribute methamphetamine” during a period
“beginning in May 2020, and continuing to on or about May 29, 2020, in
Kemper County . . . and elsewhere.” Orlando argues that the Government
failed to prove that he agreed to possess and distribute controlled substances
with his codefendants, while Donovan argues that the Government failed to
_____________________
59
Delgado, 672 F.3d at 333 (citing United States v. Parker,
554 F.3d 230, 235-36 (2d
Cir. 2009)).
60
Id. (alteration in original) (quoting United States v. Maseratti,
1 F.3d 330, 336 (5th
Cir. 1993)).
61
Jones, 969 F.3d at 198 (quoting Delgado,
672 F.3d at 334).
62
United States v. Sanders, 952 F.3d 263, 273 (5th Cir. 2020) (quoting United States
v. Gonzalez,
907 F.3d 869, 873 (5th Cir. 2018) (per curiam)).
63
United States v. Mesquias, 29 F.4th 276, 279 (5th Cir. 2022) (citing United States
v. Bowen,
818 F.3d 179, 186 (5th Cir. 2016) (per curiam)).
26
Case: 23-60286 Document: 181-1 Page: 27 Date Filed: 05/21/2025
No. 23-60286
prove that he voluntarily participated in any agreement and that all the
Government showed was a buyer-seller relationship.
Taken together and viewed in the light most favorable to the jury
verdict, the evidence presented at trial was sufficient for the jury to infer that
Donovan and Orlando agreed to possess methamphetamine with the intent
to distribute it and that they voluntarily participated in this agreement. From
the cousins’ May 21 discussion about prices for acquiring and reselling
methamphetamine, the jury could reasonably conclude that they were
purchasing the drug with the aim of selling it to others rather than for
personal consumption. A jury could interpret Donovan’s May 21 and May
26 conversations with Ford, as well as the cousins’ awareness of Ford’s
“funny ways,” as suggesting that Ford had a history of supplying them with
methamphetamine as part of an ongoing arrangement. The jury could
interpret Orlando’s request on May 23 that Donovan “Help [Orlando] get
rid of them if [Donovan] don’t find none” as Orlando asking Donovan to help
him sell his marijuana if Donovan could not procure any methamphetamine
to sell, indicating that the cousins collaborated in selling drugs.
Likewise, the jury could infer from the cousins’ second conversation
on May 28 about their potential plans for picking up the drugs from Ford that
they purposefully coordinated pickups and payments for drugs (sometimes
paying on behalf of one another) because they were acting in concert. The
jury could further construe their agreement later that night that—“we’ve
made enough money to sit back and wait on another” supplier other than
Ford—as suggesting that they shared money and profits from the venture,
another indication of an agreement. Furthermore, when the cousins
commented “[s]omebody talking” after they heard the news of Gowdy’s
arrest, the jury could interpret that statement as expressing shared concern
that someone within their larger conspiracy might cause trouble for all of
them. Their discussion about getting methamphetamine from Arizona could
27
Case: 23-60286 Document: 181-1 Page: 28 Date Filed: 05/21/2025
No. 23-60286
further indicate to a jury that this conspiracy went beyond the two of them,
Ford, and Gowdy, and it stretched across state lines. Altogether, this
evidence shows an agreement that amounts to far more than the “conscious
parallelism” that we deemed “insufficient to establish a conspiracy” in
United States v. Holloway. 64
Lastly, Gowdy’s testimony about his arrest and the circumstances
leading up to it gave the jury a basis for determining that Ford had expanded
the conspiracy to include others, and the testimony concretely connected the
various conspirators to an actual shipment of methamphetamine. Since
Donovan and Orlando had ordered methamphetamine from Ford on the
same day that Ford was supposed to receive a large package of
methamphetamine via Gowdy, the jury could reasonably infer that Donovan
and Orlando were aiming to repurchase some of the methamphetamine that
Gowdy was supposed to bring to Ford.
These reasonable inferences starkly differentiate the instant case from
United States v. White. 65 In White, we held that “[d]rug transactions alone do
not constitute a conspiracy, and it would be an exercise in sheer speculation
to conclude” from the admissible evidence “that a heroin conspiracy
existed”; moreover, “such speculation . . . does not constitute proof beyond
a reasonable doubt.” 66 In that case, there was no evidence that the accused
husband and wife ever even discussed their drug dealings. 67 Here, by
_____________________
64
377 F. App’x 383, 387-88 (5th Cir. 2010) (per curiam) (quoting Bell Atl. Corp. v.
Twombly,
550 U.S. 544, 553-54 (2007)) (holding that evidence of alleged co-conspirators
taking turns selling drugs on the street showed merely conscious parallelism, not a concert
of action).
65
569 F.2d 263 (5th Cir. 1978).
66
Id. at 268.
67
See id. at 267-68.
28
Case: 23-60286 Document: 181-1 Page: 29 Date Filed: 05/21/2025
No. 23-60286
contrast, there is far more evidence of collaboration between Donovan and
Orlando, including direct conversations in which they discussed prices and
suppliers for drugs, offered each other advice, and seemed to rely on one
another to complete deals. So, even though “it is well-settled that a
conspiracy cannot be proven solely by family relationship or other types of
close association,” 68 the jury had much more evidence to support its
inferences in this case, and the conviction was not based on mere speculation.
A jury could reasonably infer an agreement between Donovan,
Orlando, and others from this evidence. Moreover, a jury could reasonably
conclude that the agreement, which entailed efforts to acquire large
quantities of methamphetamine and potentially reached across state lines,
went far beyond the sort of “single buy-sell agreement” 69 between “mere
acquirers and street-level users” 70 that would qualify Donovan and Orlando
for the buyer-seller exception to conspiracy. Therefore, the district court did
not err in denying the motion for a judgment of acquittal on count one.
B
Count three charged Donovan with conspiring “to possess with intent
to distribute a mixture or substance containing a detectable amount of
methamphetamine” during a period “beginning on or about July 6, 2020, and
continuing to on or about July 10, 2020, in Kemper County . . . and
elsewhere.” Donovan argues that the buyer-seller exception should apply
_____________________
68
Id. at 268.
69
See United States v. Jones, 969 F.3d 192, 198 (5th Cir. 2020) (quoting United
States v. Delgado,
672 F.3d 320, 333 (5th Cir. 2012) (en banc)).
70
See Delgado, 672 F.3d at 333.
29
Case: 23-60286 Document: 181-1 Page: 30 Date Filed: 05/21/2025
No. 23-60286
and that the Government did not prove his voluntary participation in the
agreement beyond a single buy-sell agreement.
Based on the recorded phone calls and testimony, a reasonable juror
could infer that Donovan voluntarily purchased methamphetamine from
Marice Boler as part of an ongoing arrangement in order to resell
methamphetamine to others. Donovan repeatedly asked Boler for more halfpound sales of the drug, a persistence that shows willing participation.
Boler’s testimony describing the sale on July 6 was sufficient evidence for the
jury to determine that Boler had sold Donovan methamphetamine at least
once. Additionally, the jury heard evidence that Boler had only sold Donovan
one pound of methamphetamine on July 6, that Donovan asked for a half
pound more during several subsequent phone calls, and that on July 11
Donovan “still got” two pounds of methamphetamine Boler had sold him.
From that, a reasonable jury could infer that Donovan had purchased a half
pound of methamphetamine from Boler on two occasions after the initial
meeting on July 6 and before the evening of July 11. Moreover, the jury could
infer from the large quantities that Donovan sought to purchase that he was
not buying the drugs for personal consumption and that Boler would have
known that. Finally, Donovan’s comment in the second call on July 11 that
he “don’t be moving sh*t” and that he was “just put[ting] that sh*t up and
wait[ing] ‘til it get dry again” could reasonably be interpreted as meaning that
he was stockpiling methamphetamine and waiting to sell it at a more
opportune time. The jury and Boler could infer that he intended to distribute
the methamphetamine to others.
Based on these inferences, a reasonable jury could conclude that
Donovan voluntarily participated in multiple methamphetamine sales with
Boler. The buyer-seller exception, which applies only to a “single buy-sell
30
Case: 23-60286 Document: 181-1 Page: 31 Date Filed: 05/21/2025
No. 23-60286
agreement” 71 between “mere acquirers and street-level users,” 72 would not
apply here. Therefore, the district court did not err in denying Donovan’s
motion for a judgment of acquittal on count three.
C
Orlando argues that the district court erred by failing to instruct the
jury about the buyer-seller exception to drug trafficking conspiracies. The
parties agree that Orlando failed to object to the absence of this instruction at
trial. “[W]hen a defendant fails to object to jury instructions,” this court
“review[s] for plain error.” 73 As explained above, there was sufficient
evidence for a reasonable jury to find Orlando guilty of conspiracy, and the
buyer-seller exception did not apply. Because the exception did not apply,
the district court did not plainly err by failing to give such an instruction.
V
Donovan and Orlando argue that a portion of the jury charge was
improper because it could have been interpreted as pressuring the jury to
reach a unanimous verdict. While instructing the jury and before sending
them to deliberate, the district court discussed the procedure for
communicating with the court via jury notes. In an attempt to avoid a
mistrial, the judge added a specific instruction:
I caution you, however, with regard to any message you might
send that you should never state or specify your numerical
division at the time. Do not send me a message telling me you
are divided by a particular vote. If you do so, I might have to
_____________________
71
See Jones, 969 F.3d at 198 (quoting Delgado,
672 F.3d at 333).
72
See Delgado, 672 F.3d at 333.
73
United States v. Capistrano, 74 F.4th 756, 769 (5th Cir.) (quoting United States v.
Vasquez,
677 F.3d 685, 692 (5th Cir. 2012) (per curiam)), cert. denied,
144 S. Ct. 516 (2023).
31
Case: 23-60286 Document: 181-1 Page: 32 Date Filed: 05/21/2025
No. 23-60286
declare a mistrial, and that would require that the case be
retried before another jury at considerable time and expense to
all involved.
The Government argues that the instruction was warranted and did
not amount to error. Orlando incorrectly briefs this issue as an Allen 74
instruction, but this was not an Allen charge because the court gave this
instruction before any jury deliberations, let alone before any jury deadlock. 75
Donovan and the Government agree that the defendants did not
object to this instruction at trial, so we should review for plain error. 76
Orlando claims that the court should review the instruction for abuse of
discretion but fails to note when the objection was raised, and no objection
appears in the record. Therefore, we review the instruction for plain error.
To prevail on plain error review, Orlando and Donovan must “show
that: ‘(1) the district court erred, (2) the error was clear or obvious, (3) the
error affected [their] substantial rights, and (4) this court should exercise its
discretion to correct the error because the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’” 77 Specifically,
_____________________
74
Allen v. United States, 164 U.S. 492 (1896).
75
See Montoya v. Scott, 65 F.3d 405, 409 n.3 (5th Cir. 1995) (describing an Allen
charge as “supplemental jury instructions that urge deadlocked juries to forego their
differences in order to reach a unanimous verdict” (quoting Boyd v. Scott,
45 F.3d 876, 878
n.1 (5th Cir. 1994) (per curiam))).
76
Capistrano, 74 F.4th at 769.
77
Id. (quoting In re Deepwater Horizon,
824 F.3d 571, 583 (5th Cir. 2016) (per
curiam)).
32
Case: 23-60286 Document: 181-1 Page: 33 Date Filed: 05/21/2025
No. 23-60286
“[j]ury instruction error ‘does not amount to plain error unless it could have
meant the difference between acquittal and conviction.’” 78
While it is true that “the influence of the trial judge on the jury is
necessarily and properly of great weight, and that his lightest word or
intimation is received with deference,” 79 the judge’s comments here did not
amount to plain error. First, the complained-of instruction was a part of a
valid procedural discussion on jury notes. Second, the specific warning about
disclosing jury division is not unwarranted as “it is improper for the court to
inquire of the jury division.” 80 To be sure, the judge was incorrect in stating
that a jury’s disclosure of its division would, without more, be grounds for a
mistrial,81 but the judge’s mistake as to the effect of such disclosure does not
bear on the warning’s validity or impact. Third, though Donovan and
Orlando argue this instruction put pressure on jurors, the court’s urging did
just the opposite. Again, this instruction was in the context of jury notes, a
process that the judge said would “take some time,” so he asked the jury to
“be patient.” The jury could not have reasonably interpreted his request to
be patient as pressuring them to come to a verdict. Lastly, far from
discouraging jury division, the judge’s instruction contemplated just that
possibility and merely told the jury what not to do in such a case. In sum, the
_____________________
78
United States v. Fairley, 880 F.3d 198, 208 (5th Cir. 2018) (quoting United States
v. McClatchy,
249 F.3d 348, 357 (5th Cir. 2001)).
79
Starr v. United States, 153 U.S. 614, 626 (1894).
80
United States v. Warren, 594 F.2d 1046, 1049 n.3 (5th Cir. 1979).
81
Id. (“[T]he unsolicited disclosure of the jury division by the foreman is not by
itself a ground for a mistrial.”); United States v. Tanios,
82 F.3d 98, 101 (5th Cir. 1996)
(“The mere fact that the jury made known its division to the court, without more, is not
grounds for a mistrial.”).
33
Case: 23-60286 Document: 181-1 Page: 34 Date Filed: 05/21/2025
No. 23-60286
judge’s comments resist the characterization the defendants ascribe to them
and do not amount to plain error.
VI
Donovan and Orlando argue that the district court erred in calculating
their sentences under the Sentencing Guidelines. Specifically, they both
argue that they did not manage or supervise the conspiracies and should not
have received a three-level enhancement to their sentences under § 3B1.1(b).
Additionally, Orlando argues that his sentence should not have been
enhanced pursuant to § 2D1.1(b)(1) because he did not possess a gun while
engaged in relevant conduct.
The defendants made these objections before the district court. We
“review the district court’s interpretation and application of the
[Sentencing] Guidelines de novo and its factual findings for clear error.” 82
“Generally, a PSR ‘bears sufficient indicia of reliability to be considered as
evidence by the sentencing judge in making factual determinations.’” 83 “If
the court determines that the factual allegations of the PSR are sufficiently
reliable, then ‘the defendant bears the burden of demonstrating that the PSR
_____________________
82
United States v. Hernandez, 876 F.3d 161, 164 (5th Cir. 2017) (per curiam) (citing
United States v. Trujillo,
502 F.3d 353, 356 (5th Cir. 2007)).
83
United States v. Barfield, 941 F.3d 757, 762 (5th Cir. 2019) (quoting United States
v. Nava,
624 F.3d 226, 231 (5th Cir. 2010)).
34
Case: 23-60286 Document: 181-1 Page: 35 Date Filed: 05/21/2025
No. 23-60286
is inaccurate; in the absence of rebuttal evidence, the sentencing court may
properly rely on the PSR and adopt it.’” 84
A
Section 3B1.1(b) of the Sentencing Guidelines directs a sentencing
court to increase the offense level by three levels “[i]f the defendant was a
manager or supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise extensive.” 85
The second note following § 3B1.1 states that “[a]n upward departure may
be warranted . . . in the case of a defendant who did not organize, lead,
manage, or supervise another participant, but who nevertheless exercised
management responsibility over the property, assets, or activities of a
criminal organization.” 86 This court, “sitting en banc, has construed Note 2
to allow application of an adjustment, even where a defendant did not exercise
control over another participant, if he exercised management responsibility
over the property, assets, or activities of a criminal organization.” 87 Panels
of this court have subsequently relied on the note in deciding published
cases. 88 Applying this standard in an unpublished case, United States v.
Hernandez, 89 this court deemed an enhancement under § 3B1.1(b) warranted
when “the record indicate[d] that [the defendant] exercised managerial
_____________________
84
Id. at 763 (quoting United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013) (per
curiam)).
85
U.S.S.G. § 3B1.1(b) (2023).
86
Id. § 3B1.1, cmt. n.2 (2023).
87
United States v. Ochoa-Gomez, 777 F.3d 278, 282-83 (5th Cir. 2015) (per curiam)
(italics omitted) (citing United States v. Delgado,
672 F.3d 320, 345 (5th Cir. 2012) (en
banc)).
88
See, e.g., United States v. Akins, 746 F.3d 590, 609 (5th Cir. 2014).
89
451 F. App’x 402 (5th Cir. 2011) (per curiam).
35
Case: 23-60286 Document: 181-1 Page: 36 Date Filed: 05/21/2025
No. 23-60286
responsibility over the drugs and drug proceeds,” even though the
defendant’s “primary role was not as a supervisor of other participants.” 90
In another unpublished case, United States v. Johnson, 91 this court stated that
it was “plausible to conclude,” based on the PSR’s evidence that the
defendant “purchased drugs from [another], then sold those drugs to
individuals in Midland,” that the defendant “exercised control over the
organization’s drug supply to some extent.” 92
“We review a district court’s factual finding that a defendant was a
manager or supervisor under U.S.S.G. § 3B1.1(b) for clear error.” 93 “A
factual finding is not clearly erroneous if it is plausible in light of the record
read as a whole.” 94
1
Donovan argues that the district court clearly erred in accepting the
PSR’s determination that he was a manager or supervisor due to “a
conspicuous absence of evidence that [he] managed or supervised anyone,
participated in the planning and recruitment of accomplices, or exercised
control and authority over others.” However, as explained above, no such
_____________________
90
Id. at 404.
91
No. 21-10454, 2022 WL 1773365 (5th Cir. June 1, 2022) (per curiam).
92
Id. at *2 (also showing that the court considered other evidence that the
defendant supervised other coconspirators).
93
Akins, 746 F.3d at 609 (citing United States v. Rose,
449 F.3d 627, 633 (5th Cir.
2006)).
94
United States v. Hamilton, 37 F.4th 246, 262 (5th Cir. 2022) (quoting Akins,
746
F.3d at 609).
36
Case: 23-60286 Document: 181-1 Page: 37 Date Filed: 05/21/2025
No. 23-60286
evidence is required as long as he “exercised management responsibility over
the property, assets, or activities of a criminal organization.” 95
Here, evidence in the PSR shows that Donovan exercised control
over the price of the drugs involved in the conspiracy. The PSR also
describes evidence showing that Donovan acquired large quantities of drugs
and then sold them to others in smaller quantities. Additionally, evidence in
the PSR shows that Donovan coordinated a delivery of at least one pound of
methamphetamine and negotiated the price of that purchase. Though
Donovan objects in response to this evidence that the PSR does not “allege
that [Donovan] exercised management responsibility over a criminal
organization’s property, assets, or activities,” he does not demonstrate that
this information is inaccurate and therefore he does not meet his burden of
undermining the PSR’s reliability on this point. Finally, the PSR identifies
at least four other codefendants who partook in the conspiracy with
Donovan, and though he consistently objects that they did not conspire
together, he does not object to the PSR’s accuracy in naming them as his
codefendants. Based on this evidence and its similarity to the evidence we
deemed sufficient to show control over property, assets, or other activities in
Hernandez and Johnson, the district court did not clearly err in enhancing
Donovan’s sentence pursuant to § 3B1.1(b).
2
Orlando argues that “[g]iven the Court’s ruling, it is clear that
[Orlando’s] alleged supervision of his son was the determining factor that
[Orlando] managed or supervised a participant” and that “the [July 2020]
incident described by the court [relating to Orlando’s son] was a separate
incident from the conspiracy and, further, there was never a finding that the
_____________________
95
U.S.S.G. § 3B1.1, cmt. n.2 (2023).
37
Case: 23-60286 Document: 181-1 Page: 38 Date Filed: 05/21/2025
No. 23-60286
separate incident was considered relevant conduct to the instant offense.”
Therefore, Orlando maintains, “the court erred in assessing an aggravating
role to [Orlando] at sentencing.”
Orlando is correct that the district court referenced Orlando’s son in
deciding to apply the § 3B1.1(b) enhancement. Specifically, the district court
ruled, “The three-level adjustment at paragraph 60, 76 [pursuant to
§ 3B1.1(b)] is appropriate, because I find that there were five or more people
involved in the conspiracy, including Mr. Orlando Bourrage’s use of his son
to assist or aid or direct his actions in the conspiracy.” Even without
considering the July 2020 incident with Orlando’s son, though, there remains
sufficient evidence in the record to affirm this sentencing enhancement. 96 As
with Donovan, evidence in the PSR shows that Orlando exercised control
over the price and sale of the drugs involved in the conspiracy. Additionally,
the PSR identifies at least four other coconspirators, and though he
consistently objects that they did not conspire together, he does not object to
the PSR’s accuracy in naming them as his codefendants. Again, given the
similarities between this evidence and the evidence deemed sufficient to
show management of property or assets of the conspiracy in Hernandez, the
district court did not clearly err in determining that Orlando had supervisory
or managerial authority for purposes of Sentencing Guidelines § 3B1.1(b).
B
Orlando argues that the district court erred in using his possession of
a gun while distributing drugs in September 2020 to enhance his Guidelines
range. Because the indictment only charged Orlando with conspiring during
_____________________
96
See United States v. Garcia-Gonzalez, 714 F.3d 306, 314 (5th Cir. 2013) (“We may
affirm an enhancement on any ground supported by the record.” (citing United States v.
Jackson,
453 F.3d 302, 308 n.11 (5th Cir. 2006))).
38
Case: 23-60286 Document: 181-1 Page: 39 Date Filed: 05/21/2025
No. 23-60286
May 2020 to possess methamphetamine with the intent to distribute it,
Orlando argues that his possession of marijuana in September is not relevant
conduct.
Section 2D1.1(b)(1) of the Sentencing Guidelines directs a sentencing
judge to increase the offense level by two levels “[i]f a dangerous weapon
(including a firearm) was possessed.” 97 This court has held that district
courts may “properly consider related relevant conduct in determining the
applicability of section 2D1.1(b)(1).” 98 The Guidelines define relevant
conduct as “includ[ing] ‘all acts and omissions [that the defendant]
committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused’ and which ‘occurred during the commission of the offense
of conviction, in preparation for that offense, or in the course of attempting
to avoid detection or responsibility for that offense.’” 99 Because “[a]
defendant convicted of a drug offense is sentenced based on the amount of
drugs involved in the offense,” 100 in a case involving drug trafficking,
“relevant conduct may include all acts and omissions ‘that were part of the
same course of conduct or common scheme or plan as the offense of
conviction.’” 101 An offense “qualif[ies] as part of the same course of conduct
if [it is] . . . part of a single episode, spree, or ongoing series of offenses.” 102
We inquire into this similarity by “look[ing] to ‘the degree of similarity of the
_____________________
97
U.S.S.G. § 2D1.1(b)(1) (2023).
98
United States v. Paulk, 917 F.2d 879, 884 (5th Cir. 1990).
99
United States v. Barfield, 941 F.3d 757, 762 (5th Cir. 2019) (alteration in original)
(quoting U.S.S.G. § 1B1.3(a)(1)).
100
Id. (citing U.S.S.G. § 2D1.1(c)).
101
Id. (quoting U.S.S.G. § 1B1.3(a)(2)).
102
United States v. Barry, 978 F.3d 214, 219 (5th Cir. 2020) (quoting United States
v. Rhine,
583 F.3d 878, 886 (5th Cir. 2009)).
39
Case: 23-60286 Document: 181-1 Page: 40 Date Filed: 05/21/2025
No. 23-60286
offenses, the regularity (repetitions) of the offenses, and the time interval
between the offenses.’” 103 “Particularly in drug cases, this circuit has
broadly defined what constitutes ‘the same course of conduct’ or ‘common
scheme or plan.’” 104 “[T]he ‘district court’s determination of what
constitutes relevant conduct for purposes of sentencing’ is a factual finding
that ‘is reviewed for clear error.’” 105
To be sure, in examining the similarity of the offenses, differences
exist between the May 2020 conspiracy and the September 2020 incident.
When Gowdy was arrested on May 28, officers found that he was
transporting about five kilograms of methamphetamine and one pound of
marijuana. Ultimately, that arrest led to the Government charging Donovan
Bourrage, Orlando Bourrage, Cordaryl Ford, and Rondarious Gowdy with
conspiracy to possess methamphetamine with the intent to distribute it. By
contrast, Orlando allegedly purchased the marijuana discovered in
September from a different source, Montreal Bourrage; he was found to be
in possession of significantly more marijuana (1,319 grams, or three pounds);
and no methamphetamine was involved in the September 2020 incident.
However, either Orlando or a coconspirator possessed large quantities of
marijuana in both instances, so there is at least some similarity between
offenses.
Regarding the regularity of the offenses, the PSR indicates that
Orlando’s drug trafficking activity continued from May to September.
Though the PSR only vaguely describes drug sales in June, it documents in
_____________________
103
Id. (quoting Rhine, 583 U.S. at 886).
104
Barfield, 941 F.3d at 763 (quoting United States v. Bryant,
991 F.2d 171, 177 (5th
Cir. 1993) (per curiam)).
105
Id. at 761 (quoting United States v. Wall,
180 F.3d 641, 644 (5th Cir. 1999)).
40
Case: 23-60286 Document: 181-1 Page: 41 Date Filed: 05/21/2025
No. 23-60286
detail drug transactions in July, including conversations on the subject on July
9, July 10, July 11, July 12, and July 28. Many of these deals involved Orlando
purchasing either methamphetamine or marijuana from Montreal Bourrage.
This evidence shows that the May and September incidents were not merely
isolated incidents that took place several months apart from each other;
rather, Orlando’s possession of marijuana in September was part of a
continuous stream of drug activity that agents had begun tracking in May.
The regularity of the offenses favors viewing the September incident as
relevant conduct.
Finally, regarding temporal proximity, the September 18 incident
occurred about four months after Gowdy’s arrest on May 28. We have
deemed a gap of two months such a “close . . . temporal proximity” that it is
a “strong indicator of relevance—enough to overcome weakness in another
factor.” 106 In so holding, we relied in part on the “well settled” law of this
circuit “that offenses which occur within one year of the offense of
conviction may be considered relevant conduct for sentencing.” 107 A four-month gap is only slightly longer than the two months described as a strong
indicator of relevance in United States v. Barry 108 and is far shorter than the
year-long gap that we have also deemed acceptable. The four-month gap also
differs starkly from cases that Orlando argues are similar to his, which feature
a seventeen-month gap 109 and a twenty-one-month gap 110 separating the
offense of conviction from the allegedly relevant conduct. Therefore, the
_____________________
106
Barry, 978 F.3d at 219-20.
107
Id. at 220 (quoting United States v. Ocana,
204 F.3d 585, 590 (5th Cir. 2000)).
108
978 F.3d 214, 219 (5th Cir. 2020).
109
See United States v. Rhine, 583 F.3d 878, 886-87 (5th Cir. 2009).
110
See United States v. Miller, 179 F.3d 961, 967 (5th Cir. 1999).
41
Case: 23-60286 Document: 181-1 Page: 42 Date Filed: 05/21/2025
No. 23-60286
temporal proximity here strongly indicates that the September incident is
relevant conduct for the May conspiracy.
Given the existence of some similarity between the offenses, the
regularity of Orlando’s drug trafficking activity in the intervening period, and
the relatively short temporal gap between the incidents, the district court did
not clearly err in deeming the September arrest relevant conduct. Moreover,
because § 2D1.1(b)(1) requires increasing the offense level by two when “a
dangerous weapon (including a firearm) was possessed,” 111 and Orlando was
found in possession of a firearm when he was arrested in September, the
§ 2D1.1(b)(1) enhancement was not clear error.
…
We AFFIRM the judgments of the district court.
_____________________
111
U.S.S.G. § 2D1.1(b)(1) (2023).
42
