941 F.3d 435
10th Cir.2019Background
- Investigation into Jerrell Birch (controlled buys and wiretaps) led agents to Duran after intercepted calls suggested Birch bought cocaine from Duran.
- Recordings include March 8, 2017 calls where Duran referenced “Unc,” told Birch to “raindrop it,” and Birch referenced seeing “gooey, gooey” (interpreted by agents as conversion of powder cocaine into crack).
- Surveillance showed Duran and Birch met about 1½ hours at an apartment on March 8; agents testified that was sufficient time to convert powder to crack.
- On March 11 Duran acknowledged he still had “the hard” (agents described “hard” as crack), but he was acquitted on the March 11 distribution count (Count 24).
- At trial the government played recorded calls and elicited testimony from: case agents (overview and controlled-buys background), Officer Rossi (call interpretations), and Agent Peterson (expert on drug-trafficking code language).
- Jury convicted Duran on Counts 22 (March 8 distribution/possession), 34 (conspiracy), and Counts 35–36 (telephone-facilitation on March 8 and 11); conviction affirmed on appeal.
Issues
| Issue | Duran's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Count 22 (possession/distribution on Mar 8) | Evidence was circumstantial and no one saw drugs or a controlled buy on Mar 8; insufficient to prove possession | Recorded calls, surveillance meeting of 1½ hours, later admission that Duran still had the “hard” — together support reasonable inference of possession | Affirmed: circumstantial evidence (calls, meeting, later admission) sufficient to infer possession on Mar 8 |
| Sufficiency for Counts 35–36 (telephone facilitation Mar 8 & 11) | Cannot facilitate if underlying possession not proven (esp. Mar 11 acquittal) | Facilitation requires using phone to make underlying felony easier; facilitation can be proven even if another committed the underlying crime or if jury acquitted predicate | Affirmed: phone calls could reasonably be found to have facilitated drug offenses on both dates; acquittal on predicate does not bar facilitation conviction |
| Admission of Officer Fania’s testimony about prior controlled buys of Birch | Testimony irrelevant, hearsay, prejudicial, and lacking personal knowledge | Testimony was relevant overview of investigation; answers did not repeat out-of-court statements and officer had personal knowledge as case agent | Affirmed: district court did not abuse discretion; testimony was relevant, not improper hearsay as presented, and personal-knowledge objection forfeited or unpersuasive |
| Admission of Rossi/Peterson testimony on call meanings and code language | Agent testimony invaded jury role, relied on hearsay, and was unduly prejudicial; Peterson unqualified on code language | Agents’ lay opinions and expert testimony were based on investigation, experience, and helped explain coded calls; district court satisfied Rule 702 gatekeeping | Affirmed: Rossi’s interpretations and Peterson’s expert opinion were admissible (no abuse of discretion); jury instructed to weigh agent opinions |
Key Cases Cited
- United States v. Mirabal, 876 F.3d 1029 (10th Cir. 2017) (standard of review for sufficiency: view evidence in light most favorable to government)
- United States v. Baggett, 890 F.2d 1095 (10th Cir. 1989) (circumstantial-evidence principles for proving possession)
- United States v. Marquez, 898 F.3d 1036 (10th Cir. 2018) (recorded statements can constitute direct evidence of possession)
- United States v. Pickle, 863 F.3d 1240 (10th Cir. 2017) (elements for telephone-facilitation offense under 21 U.S.C. § 843(b))
- United States v. Powell, 469 U.S. 57 (U.S. 1984) (acquittal on predicate felony does not preclude conviction on related facilitation charge)
- United States v. Banks, 884 F.3d 998 (10th Cir. 2018) (abuse-of-discretion standard for evidentiary rulings)
- United States v. Roach, 582 F.3d 1192 (10th Cir. 2009) (Rule 702 gatekeeping and standards for reviewing expert admissibility)