NOT RECOMMENDED FOR PUBLICATION
`File Name: 22a0034n.06
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`Case No. 21-1177
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
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`Plaintiff - Appellee,
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`ON APPEAL FROM THE UNITED
`STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF MICHIGAN
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`UNITED STATES OF AMERICA,
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`v.
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`LUIS AYALA-VIEYRA,
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`Defendant - Appellant.
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`BEFORE: BOGGS, GIBBONS, and NALBANDIAN, Circuit Judges.
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`JULIA SMITH GIBBONS, Circuit Judge. Luis Ayala-Vieyra was convicted by a jury for
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`conspiracy to distribute and possess with intent to distribute cocaine and distribution of cocaine.
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`On appeal, he argues the district court erred in denying his motions to suppress wiretaps, allowing
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`jurors to be masked during voir dire, permitting phone transcripts to be read to the jury, failing to
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`exclude expert testimony, applying a gun enhancement at his sentencing, and failing to credit him
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`for acceptance of responsibility. We disagree and affirm the district court.
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`I.
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`We begin with a discussion of the relevant wiretap applications, before turning to Ayala-
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`Vieyra’s motions to suppress, trial, and sentencing.
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`No. 21-1177, United States v. Luis Ayala-Vieyra
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`A.
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`In 2018 and 2019, the Drug Enforcement Administration (“DEA”) investigated Gaston
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`Silva for cocaine trafficking in Grand Rapids, Michigan. This investigation included applications
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`for numerous wiretaps, eventually leading to a wiretap of Ayala-Vieyra’s phone.
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`In April 2019, the government applied for interception of Gaston Silva’s, Tony Silva’s,
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`and Teodulo Zepeda’s phones, after physical and electronic surveillance indicated they were
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`involved in distributing narcotics. The affiant described why traditional investigative techniques
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`would not allow the government to fully complete its investigation. For example, individuals had
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`thwarted physical surveillance, execution of search warrants too early would lead to detection of
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`the investigation and result in destruction of evidence, and video surveillance was of limited use
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`against a mobile drug organization. The interception of Gaston Silva’s phone also helped
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`investigators identify Luis Ayala-Vieyra and his brother, Inocencio Ayala-Vieyra, as drug
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`suppliers. The district court authorized the wiretaps.
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`In May 2019, the government sought continued interception of Tony Silva’s and Zepeda’s
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`phones and new interception of Inocencio Ayala-Vieyra’s phone. For reasons similar to those
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`explained in the April application, the affiant detailed why the wiretaps were necessary to fully
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`investigate the numerous drug organizations. The district court authorized the wiretaps.
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`In July 2019, the government sought to continue interception of Inocencio Ayala-Vieyra’s
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`phone and to initiate interception of Luis Ayala-Vieyra’s phone. Investigators identified Luis
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`Ayala-Vieyra as a supplier for Inocencio, but were unable to identify the source of his supply.
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`Again, the affiant described why the wiretaps were necessary. For example, a confidential
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`informant provided some information, but was unable to provide information on the Ayala-
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`No. 21-1177, United States v. Luis Ayala-Vieyra
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`Vieyras’ current narcotics activity. Surveillance and trash pulls were unsuccessful. The district
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`court authorized the wiretaps.
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`B.
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`Luis Ayala-Vieyra was indicted for conspiracy to distribute and to possess with intent to
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`distribute cocaine, as well as distribution of cocaine. He moved to suppress the wiretap evidence,
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`arguing the applications for the wiretaps failed to establish probable cause and necessity. The
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`district court denied the motions.
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`Ayala-Vieyra also moved for an order requiring the preparation of transcripts of ex parte
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`hearings before the issuing judge on the wiretap applications. The district court denied the motions
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`after the government affirmed it had not presented any additional evidence in those ex parte
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`hearings.
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`C.
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`Ayala-Vieyra proceeded to trial on September 21, 2020. Because his trial took place during
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`the COVID-19 pandemic, the district court took safety precautions including allowing jurors to
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`wear face masks. Ayala-Vieyra objected, with his counsel arguing he did not know whether he
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`could “adequately assess credibility of anyone wearing a mask.” DE 210, Trial Tr., Page ID 1232.
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`The district court overruled the objection, noting that the masks did not create a Sixth Amendment
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`issue as the jurors were not witnesses and recognizing that jurors could be uncomfortable with
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`unmasked fellow jurors given the health concerns presented by the pandemic.
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`During trial, the government proposed calling two people from its office to read to the jury
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`transcripts that the parties agreed to admit. Ayala-Vieyra objected, arguing he thought “the best
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`way is to have the jury read them.” Id. at 1312. The district court overruled the objection,
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`No. 21-1177, United States v. Luis Ayala-Vieyra
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`explaining that it found no prejudice and would allow the government to decide how to present its
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`evidence.
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`The government also called DEA Special Agent Thomas Burns. Before trial, Ayala-Vieyra
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`moved to exclude Burns’s expert testimony under Federal Rule of Evidence 702 and Daubert v.
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`Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), arguing that drug experts do not offer a
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`reliable methodology nor provide testimony beyond the common knowledge of the average juror.
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`The district court heard argument on the motion during the pretrial conference. The defense argued
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`that Burns’s general testimony that drug dealers talk in code was within the common knowledge
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`of the jury. The government responded that Burns’s testimony on how drug dealers use an “entire
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`ad-hoc language” to avoid police would be helpful, as not all jurors were familiar with the practice.
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`DE 129, Pretrial Tr., Page ID 696. The district court denied Ayala-Vieyra’s motion, explaining:
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`I appreciate the fact that the language used in these phone calls may be common to
`practitioners both on the prosecution and defense side and members of the judiciary,
`but to say that your average juror in the Western District of Michigan will
`understand code—use or code words and lingo in drug—in the drug trade, I think
`is a real stretch.
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`Id. at 697. After a three-day trial, the jury convicted Ayala-Vieyra on all counts.
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`D.
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`In Ayala-Vieyra’s Presentence Investigation Report (“PSR”), the probation office
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`calculated an offense level of 32 and a criminal history category of I. The recommended
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`Guidelines range was 121 to 151 months of imprisonment. Ayala-Vieyra raised numerous
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`objections.
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`Ayala-Vieyra objected to receiving a two-level enhancement for possession of a firearm in
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`connection with drug trafficking activities. He argued the gun found in his residence belonged
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`and was registered to his wife and there was no evidence he stored drugs in proximity to the gun.
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`No. 21-1177, United States v. Luis Ayala-Vieyra
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`The district court overruled his objection, finding that Ayala-Vieyra stored drugs in his home and
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`that the gun could be jointly possessed with his wife.
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`Ayala-Vieyra also objected to the absence of a reduction in his offense level calculation
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`for acceptance of responsibility. The district court overruled the objection, explaining that Ayala-
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`Vieyra went to trial and contested each element of the offense. Finding the drug weight calculation
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`should be four levels lower than the PSR recommendation, the district court calculated a
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`Guidelines range of 78 to 97 months in prison and sentenced Ayala-Vieyra to 78 months’
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`imprisonment.
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`II.
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`We discuss Ayala-Vieyra’s arguments in chronological order, beginning with his pretrial
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`motions to suppress the wiretap evidence.
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`A.
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`When reviewing the district court’s decision to suppress a wiretap under 18 U.S.C. § 2518,
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`we review findings of fact for clear error and questions of law de novo. United States v. Rice, 478
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`F.3d 704, 709 (6th Cir. 2007). “Generally, a district court’s finding that the requirements of
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`§ 2518(1)(c) [the necessity provision] have been met are afforded ‘considerable discretion.’”
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`United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002) (quoting United States v. Landmesser,
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`553 F.2d 17, 20 (6th Cir. 1977)).
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`Ayala-Vieyra argues the district court should have granted his motions to suppress the
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`wiretap evidence because the government failed to establish probable cause or necessity in the
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`wiretap applications. He also contends the district court should have provided him with transcripts
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`of ex parte wiretap hearings.
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`No. 21-1177, United States v. Luis Ayala-Vieyra
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`1.
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`A wiretap application must establish probable cause “that an individual is committing, has
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`committed, or is about to commit a particular offense” and “that particular communications
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`concerning that offense will be obtained through such interception.” 18 U.S.C. § 2518(3)(a)–(b).
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`Probable cause does not require “certainty” but only a “fair probability” that is greater than mere
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`suspicion. United States v. Alfano, 838 F.2d 158, 162 (6th Cir. 1988).
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`Ayala-Vieyra argues that no probable cause supported the wiretaps because the phone
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`conversations described in the affidavits did not allude to contraband and because the affiant made
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`unsupported conclusions.
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` However, the affidavit explains how seemingly
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`innocuous
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`conversations are coded, based on the affiant’s general experience as a DEA agent and specific
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`experience with the investigation.
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`For example, texts were intercepted between Luis Ayala-Vieyra and Inocencio Ayala-
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`Vieyra referring to a “key.” The affiant explained that “key” is a common code reference for a
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`kilogram of narcotics. This common shorthand, combined with the fact that cocaine was later
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`found in Inocencio’s car, supported the affiant’s belief that the brothers were discussing narcotics
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`in this conversation. While Ayala-Vieyra may suggest alternative ways of reading the messages,
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`“the probable cause requirement does not require that every contrary hypothesis be excluded.”
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`Alfano, 838 F.2d at 162. Further, while the issuing judge should not simply accept an officer’s
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`speculation, the district court is permitted to rely on an officer’s training and experience in
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`weighing the overall evaluation of probable cause. United States v. Jackson, 454 F. App’x 435,
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`439 (6th Cir. 2011).
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`The wiretap applications provide extensive detail on various conversations and
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`corresponding surveillance that led investigators to conclude the targeted subjects were involved
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`No. 21-1177, United States v. Luis Ayala-Vieyra
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`in drug trafficking. Looking at the totality of the circumstances, this was sufficient to establish
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`probable cause. See Alfano, 838 F.2d at 161; United States v. Young, 847 F.3d 328, 343–44 (6th
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`Cir. 2017).
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`2.
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`Ayala-Vieyra also challenges the necessity of the wiretaps. An application for a wiretap
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`under Title III must contain a full and complete statement of other investigative procedures that
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`have been tried and failed or why they would be unlikely to succeed or are too dangerous. Rice,
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`478 F.3d at 709–10. This requirement “protects against the impermissible use of a wiretap as the
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`‘initial step in [a] criminal investigation’” and ensures that a wiretap is not used when traditional
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`investigative techniques would suffice. Id. at 710 (quoting United States v. Giordano, 416 U.S.
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`505, 515 (1974)). However, “the government is not required to prove that every other conceivable
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`method has been tried and failed or that all avenues of investigation have been exhausted.” Id.
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`(citation omitted). The investigators need only “give serious consideration to the non-wiretap
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`techniques prior to applying for wiretap authority.” Id. (citation omitted).
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`Ayala-Vieyra argues that “the affidavit dips into boilerplate” showing “the government’s
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`lack of effort in pursuing options” other than wiretaps. CA6 R. 19, Appellant Br., at 27, 30.
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`Boilerplate language without any statements about the specific case at hand is insufficient to
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`support a wiretap. Landmesser, 553 F.2d at 20. However, an affidavit is not ipso facto insufficient
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`if it uses some generalized language, as long as it also includes circumstances specific to the
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`present case. See United States v. Wren, 528 F. App’x 500, 504–05 (6th Cir. 2013). The affidavits
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`in this case use some overlapping language that apply to most narcotics investigations but the
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`affiant also provided details unique to Ayala-Vieyra.
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`No. 21-1177, United States v. Luis Ayala-Vieyra
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`For example, investigators conducted extensive physical surveillance of Ayala-Vieyra and
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`tracked him visiting numerous residences, but they had insufficient information to determine
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`which visits were drug related. A confidential informant provided some information about the
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`Ayala-Vieyra brothers but could not contact them directly or provide any current information about
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`their narcotics transactions. Surveillance also failed to identify narcotics customers. Given these
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`circumstances specific to Ayala-Vieyra, the affidavit is not impermissibly boilerplate. See Wren,
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`528 F. App’x at 505.
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`Ayala-Vieyra argues the government could have done more. However, exhaustion is not
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`required, and “the government need not prove the impossibility of other means of obtaining
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`information.” Stewart, 306 F.3d at 305. Therefore, the district court did not err in finding the
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`necessity requirement satisfied and denying Ayala-Vieyra’s motions to suppress. See Young, 847
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`F.3d at 344–45; United States v. Asker, 676 F. App’x 447, 459 (6th Cir. 2017).
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`3.
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`Ayala-Vieyra also argues the district court erred in denying his motions to order the ex
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`parte wiretap hearings transcribed and disclosed. We review “decisions of the district court to seal
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`court documents or records, as well as orders lifting or modifying a seal, for abuse of discretion.”
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`Rudd Equip. Co., Inc. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016).
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`Under 18 U.S.C. § 2518(8)(b), wiretap applications are sealed and “shall be disclosed only
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`upon a showing of good cause.” Ayala-Vieyra filed two motions seeking transcripts of ex parte
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`hearings for wiretap applications, arguing that “[r]eview of the transcripts of the hearings are
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`required in order to determine whether the Court had all of the information considered when the
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`Title III applications were considered.” DE 69, Mot., Page ID 304–07; DE 59, Mot., Page ID 274–
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`75. The government responded that there was no good cause to unseal the transcripts as it affirmed
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`that “it presented no additional evidence during those hearings that was not included in the written
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`applications, which have already been disclosed.” DE 73, Resp., Page ID 311–12; DE 63, Resp.,
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`Page ID 279–80. Accepting the government’s affirmation, the district court found no good cause
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`to unseal the transcript where Ayala-Vieyra had the wiretap applications and supporting affidavits.
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`Ayala-Vieyra argues that the district court should not have accepted the government’s
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`affirmation but cites no authority that this is improper, particularly here where the district court
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`only considered the disclosed documents to find probable cause and necessity for the wiretaps.
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`As the wiretap applications and supporting affidavits were disclosed to the defense, the district
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`court considered only those documents in ruling on the motions to suppress, and the government
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`affirmed that no further evidence was provided at the hearings, the district court did not abuse its
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`discretion in denying Ayala-Vieyra’s motions for ex parte hearing transcripts.
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`B.
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`Ayala-Vieyra raises numerous issues with his trial: the jurors were masked during voir
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`dire; phone transcripts were read to the jury; and Burns testified as an expert on drug trafficking
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`practices. We review a district court’s manner of conducting voir dire, rulings on evidentiary
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`challenges, and admission of expert testimony for abuse of discretion. See United States v. Tocco,
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`200 F.3d 401, 411, 418 (6th Cir. 2000); United States v. Tragas, 727 F.3d 610, 614 (6th Cir. 2013).
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`1.
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`During voir dire, defense counsel objected to prospective jurors wearing masks, claiming
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`he could not adequately assess credibility. The district court overruled the objection, noting that
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`jurors were not witnesses implicating the Sixth Amendment and that the health circumstances of
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`the COVID-19 pandemic warranted masking.
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`On appeal, Ayala-Vieyra argues this was error as “[f]acial expressions tell much about
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`credibility” and therefore implicate the Fifth and Sixth Amendments. CA6 R. 19, Appellant Br.,
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`at 62. He contends that potential jurors could have used clear face masks to balance the need to
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`minimize health risks with that of seeing jurors’ faces. First, defense counsel did not suggest face
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`shields to the district court despite “the ease with which” Ayala-Vieyra now says they could have
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`been used. CA6 R. 19, Appellant Br., at 61. Second, Ayala-Vieyra cites no authority that seeing
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`the bottom of the jurors’ faces is constitutionally required. Courts have consistently held to the
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`contrary.1
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`The district court did not abuse its discretion in having jurors masked in voir dire during a
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`global pandemic.
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`2.
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`Ayala-Vieyra also argues that the district court erred in allowing government personnel to
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`read transcripts of phone exchanges aloud to the jury. At trial, defense counsel objected to the
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`government reading transcripts out loud because of an unnamed “danger.” DE 210, Trial Tr., Page
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`ID 1312. He asked the court to publish the transcripts for the jury to read themselves. The
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`government responded that it would be calling two people from its office, a legal assistant and a
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`victim/witness coordinator, to read the parts aloud without any “dramatic intonation” or “ad lib.”
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`Id. at 1313. The district court overruled Ayala-Vieyra’s objection, noting that the government was
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`permitted to decide how to effectively present its evidence and there was no “prejudice to the
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`defendant evident based on what [the court] heard so far.” Id. at 1313–14.
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`1 See United States v. Watkins, No. 18-CR-32-A, 2021 WL 3732298, at *7 (W.D.N.Y. Aug. 24, 2021); United States
`v. Thompson, No. 19-1610, 2021 WL 2402203, at *5 (D.N.M. June 11, 2021); United States v. Tagliaferro, 531 F.
`Supp. 3d 844, 851 (S.D.N.Y. 2021); United States v. Robertson, No. 17-CR-02949, 2020 WL 6701874, at *2 (D.N.M.
`Nov. 13, 2020); United States v. James, No. CR-19-08019-001, 2020 WL 6081501, at *3 (D. Ariz. Oct. 15, 2020);
`United States v. Trimarco, No. 17-CR-583, 2020 WL 5211051, at *5 (E.D.N.Y. Sept. 1, 2020); United States v.
`Crittenden, No. 4:20-CR-7, 2020 WL 4917733, at *8 (M.D. Ga. Aug. 21, 2020).
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`“[T]here is nothing inherently problematic about reading” properly admitted transcripts.
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`Tragas, 727 F.3d at 614. While a “staged performance or re-enactment” that “strayed from the
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`direct evidence” would be problematic, Ayala-Vieyra points to no portion of the reading that was
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`improper. Id. Rather, Ayala-Vieyra argues that the reading alone bolstered the evidence. But
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`there is “no support for the proposition that admissible documentary evidence somehow becomes
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`more credible if the prosecutor reads it aloud.” Id. at 615. Therefore, the district court did not
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`abuse its discretion in allowing government personnel to read the stipulated-to transcripts to the
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`jury.
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`3.
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`Ayala-Vieyra contends that Burns provided improper expert testimony because it was
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`irrelevant and unreliable. At trial, Burns testified that law enforcement often see code words used
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`in phone calls and texts when suspects discuss drugs.
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`First, Ayala-Vieyra argues this testimony offers nothing beyond the knowledge of an
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`average juror. We “regularly allow[] qualified law enforcement personnel to testify on
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`characteristics of criminal activity, as long as appropriate cautionary instructions are given, since
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`knowledge of such activity is generally beyond the understanding of the average layman.” United
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`States v. Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004) (citation omitted). As knowledge of the
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`drug trafficking trade is generally beyond the knowledge of the average juror, Ayala-Vieyra’s
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`argument is without merit. See id.; United States v. Assfy, No. 20-1630, 2021 WL 2935359, at *3
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`(6th Cir. July 13, 2021).
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`Second, Ayala-Vieyra argues that this type of testimony on drug trafficking practices is
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`unreliable because it relies on anecdotes rather than methodology. “Rule 702 affords the district
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`court ‘considerable leeway in deciding in a particular case how to go about determining whether
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`particular expert testimony is reliable.’” United States v. Simpson, 845 F. App’x 403, 409 (6th
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`Cir. 2021) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). A DEA agent’s
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`extensive experience is a permissible basis to find expert testimony reliable. See id. at 411; United
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`States v. Johnson, 488 F.3d 690, 698 (6th Cir. 2007); United States v. List, 200 F. App’x 535, 545
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`(6th Cir. 2006). Therefore, the district court did not abuse its discretion in allowing Burns to testify
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`as an expert on drug trafficking practices.
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`C.
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`Turning to sentencing, Ayala-Vieyra raises two procedural errors: (1) the application of a
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`firearm enhancement and (2) the failure to credit him for acceptance of responsibility.
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`1.
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`A district court’s finding that a defendant possessed a firearm for purposes of enhancement
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`under U.S.S.G. §2D1.1 is reviewed for clear error. United States v. Elder, 90 F.3d 1110, 1133 (6th
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`Cir. 1996). In applying the firearm enhancement under §2D1.1(b)(1), the government must show
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`“‘by a preponderance of the evidence that the defendant possessed the firearm’ while committing
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`a drug trafficking offense.” United States v. Davidson, 409 F.3d 304, 312 (6th Cir. 2005) (citation
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`omitted). “A defendant constructively possesses a firearm if he knowingly ‘has ownership, or
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`dominion or control over the firearm itself, or dominion over the premises where the firearm is
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`located.’” United States v. Brown, 856 F. App’x 36, 40 (6th Cir. 2021) (quoting United States v.
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`Galvan, 453 F.3d 738, 742 (6th Cir. 2006) (cleaned up)). We have consistently held that
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`constructive possession can be shown where contraband is found in the defendant’s living space.
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`See id.; United States v. Malone, 308 F. App’x 949, 952–53 (6th Cir. 2009) (collecting cases).
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`The PSR recommended a two-level enhancement under U.S.S.G. §2D1.1(b)(1). Ayala-
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`Vieyra objected, arguing the gun found in his residence belonged and was registered to his wife
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`and there was no evidence he stored drugs in proximity to the gun. The district court overruled
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`his objection, finding that Ayala-Vieyra “stored a significant amount of drugs, which was the
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`subject matter of this conspiracy, at his home, which he shared with his wife and, of course, a
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`firearm can be jointly possessed by another individual.” DE 213, Sentencing Tr., Page ID 1619–
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`20.
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`While it is undisputed that the gun found in Ayala-Vieyra’s home was registered to his
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`wife, §2D1.1(b)(1) only requires possession, not ownership and “the law recognizes joint
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`possession.” United States v. Wheaton, 517 F.3d 350, 367 (6th Cir. 2008). As the gun was found
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`in Ayala-Vieyra’s living space, it was not clearly erroneous for the district court to determine that
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`Ayala-Vieyra had constructive possession of the gun. See id.; Brown, 856 F. App’x at 40–41;
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`United States v. Akins, 422 F. App’x 496, 497 (6th Cir. 2011).
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`Still Ayala-Vieyra argues that there was insufficient evidence that he kept and sold drugs
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`at his home where the gun was found. Law enforcement did not find drugs in the search of Ayala-
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`Vieyra’s home, but there was trial testimony that a police dog detected the odor of drugs in the
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`home, that Gaston Silva picked up a kilogram of cocaine at the home, and that officers observed
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`individuals visit the home and then found cocaine in their possession. In light of the evidence that
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`drug transactions did occur at the home, it was not clearly erroneous for the district court to find
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`the firearm enhancement warranted. See Wheaton, 517 F.3d at 368; Akins, 422 F. App’x at 497.
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`2.
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`We review a district court’s refusal to reduce a sentence based on acceptance of
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`responsibility for clear error as the “sentencing judge is in a unique position to evaluate a
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`defendant’s acceptance of responsibility.” United States v. Theunick, 651 F.3d 578, 588 (6th Cir.
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`2011) (quoting U.S.S.G. §3E1.1 cmt. n.5). “In rare situations a defendant may clearly demonstrate
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`an acceptance of responsibility for his criminal conduct even though he exercises his constitutional
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`right to a trial.” Id. (quoting U.S.S.G. §3E1.1 cmt. n.2). A defendant going to trial to preserve an
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`issue that does not relate to factual guilt could be an example. Id.
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`Ayala-Vieyra objected to the absence of a reduction for acceptance of responsibility in his
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`PSR. He argues he only proceeded to trial to challenge the drug quantity and had previously met
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`with the government to express remorse for his conduct. The district court overruled Ayala-
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`Vieyra’s objection, explaining that Ayala-Vieyra went to trial and contested all elements of the
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`offense before the jury. The court clarified: “This trial was not just about weight, in fact, weight
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`was not an element of the offense before the jury.” DE 213, Sentencing Tr., Page ID 1620.
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`At trial, Ayala-Vieyra argued to the jury that he was not guilty. He also moved for a
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`judgment of acquittal, contending there was no evidence he conspired to sell or sold drugs. And
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`contrary to Ayala-Vieyra’s argument, drug weight was not an issue for the jury, but rather a matter
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`for sentencing. Therefore, the district court did not err in declining to credit Ayala-Vieyra with
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`acceptance of responsibility. See Theunick, 651 F.3d at 588; United States v. Woods, 323 F. App’x
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`437, 443 (6th Cir. 2009); United States v. Hardy, 302 F. App’x 420, 423 (6th Cir. 2008).
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`III.
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`The district court did not err in denying Ayala-Vieyra’s motions to suppress wiretaps. Nor
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`did the district court err in denying Ayala-Vieyra’s request for transcripts of ex parte wiretap
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`hearings where the government affirmed that no undisclosed evidence was presented at those
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`hearings. As for trial, the district court did not err in allowing jurors to remain masked during voir
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`dire, permitting phone transcripts to be read to the jury, or in allowing Burns to testify as an expert.
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`At sentencing, the district court did not err in applying the firearm enhancement and denying credit
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`for acceptance of responsibility. Therefore, we affirm the district court.
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`- 14 -
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