FILED United States Court of Appeals Tenth Circuit PUBLISH October 9, 2019 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1062
FERNANDO DURAN,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CR-00135-RBJ-7) _________________________________
Adam Mueller, Haddon, Morgan, and Foreman, P.C., Denver, Colorado, for the Defendant - Appellant.
James C. Murphy, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with him on the brief) Office of the United States Attorney, District of Colorado, for Plaintiff - Appellee. _________________________________
Before BACHARACH, BALDOCK, and EBEL, Circuit Judges. _________________________________
BACHARACH, Circuit Judge. _________________________________ After a jury trial, Mr. Fernando Duran was convicted on drug
charges. He appeals, arguing that the evidence was insufficient to convict on three of the counts and
the district court abused its discretion in admitting testimony regarding prior drug transactions and interpretations of recorded calls.
We reject these arguments.
1. An investigation into Mr. Jerrell Birch leads to the convictions of Mr. Duran.
The case against Mr. Duran stemmed from an investigation involving
Mr. Jerrell Birch. The investigation included three controlled buys of crack
cocaine from Mr. Birch and wiretaps on two of his telephones. The
telephone calls aroused suspicion that Mr. Birch was buying cocaine from
Mr. Duran, and these suspicions led to the prosecution of Mr. Duran. At
trial, the government presented
recorded telephone calls between Mr. Birch and Mr. Duran and
testimony from law-enforcement officers describing the investigation and interpreting the conversations.
The jury found Mr. Duran guilty on four counts:
Count 22: distributing and possessing cocaine with the intent to distribute on March 8, 2017 (see 21 U.S.C. § 841(a)(1) and (b)(1)(C)),
Count 34: conspiring to distribute and possess cocaine and crack cocaine with the intent to distribute between February 1, 2017, and March 31, 2017 (see 21 U.S.C. §§ 841(a) and 846), and
Counts 35 and 36: using a telephone to facilitate the manufacture, distribution, and possession with intent to
2 distribute crack cocaine on March 8 and 11, 2017 (see 21 U.S.C. § 843(b)). 1
2. The evidence was sufficient to convict on Counts 22, 35, and 36.
Mr. Duran challenges the sufficiency of the evidence supporting
Counts 22, 35, and 36. We reject these challenges.
A. Standard of Review
We engage in de novo review, viewing the evidence in the light most
favorable to the government. United States v. Mirabal, 876 F.3d 1029,
1038 (10th Cir. 2017). Viewing “the evidence in this light, we will reverse
only if the trier of fact could not rationally have found guilt beyond a
reasonable doubt.” Id.
B. Count 22: Distributing and Possessing Cocaine on March 8, 2017
On Count 22, the government presented evidence that included both
recorded calls and surveillance.
1. On March 8, after expressing happiness from Unc’s visit, Mr. Duran directs Mr. Birch to “raindrop it,” with the expectation of seeing “gooey, gooey.”
Two of the calls took place on March 8, 2017. In these calls, Mr.
Duran acknowledged the presence of someone named “Unc,” telling Mr.
1 Mr. Duran was acquitted on Count 24: distributing and possessing cocaine with intent to distribute 28 grams or more of a substance containing cocaine base (crack cocaine) on March 11, 2017. 3 Birch to “raindrop it.” And Mr. Birch noted his anticipation of “gooey,
gooey.”
The first conversation took place early in the afternoon. In this call,
Mr. Duran expressed happiness about a visit from Unc and told Mr. Birch
to “raindrop it”:
Duran: Fucking Unc’s is here.
Birch: Oh yeah.
Duran: Yeah.
Birch: That’s crazy.
Duran: Fucking happy as a motherfucker.
Birch: When did he get
Duran: Raindrops, drop tops.
Birch: Raindrops?
Duran: (Unintelligible) its super, super raindrop.
Birch: Yeah right.
Duran: I swear, on everything.
. . . .
Duran: Where you gonna be at [at 4 pm]
Birch: I’ll be in the hood. You already know where I’m gonna be at.
Duran: Alright cause fucking ah I want you to raindrop it.
Govt. Exh. 9a at 57–58.
4 In another call that evening, Mr. Birch supplied directions to Mr.
Duran for a meeting. As Mr. Duran drove, Mr. Birch noted that he was
“about to see that gooey, gooey”:
Duran: Motherfucker all I do is work.
Birch: Yeah all you do, sell bull shit work.
Duran: Yeah right motherfucker. Fuck you.
Birch: (Laughs)
Duran: We’re about to see bull shit work.
Birch: Yeah I’m about to see that gooey, that gooey, gooey.
Duran: Yeah right motherfucker.
Birch: That goo. . . .
Duran: After this you’re gonna be like where you at bro, bro. (Laughs)
Govt. Exh. 13a at 70–71.
2. Mr. Duran and Mr. Birch meet later the same day for about 1-1/2 hours.
The government also presented testimony from law-enforcement
officers about their visual surveillance of Mr. Duran and Mr. Birch. On
March 8, 2017, the officers saw the two men meet at an apartment complex
for about 1-1/2 hours.
5 3. Mr. Duran later acknowledges that he still had the “hard” given to him by Mr. Birch.
Three days later, Mr. Duran acknowledges that he still had the “hard”
given by Mr. Birch:
Duran: Unc’s is supposed to be, I’m supposed to meet him when I leave out of here, but I still got that, that one and a heezy still.
Birch: What the hard that I gave you?
Duran: Yeah, you want that you don’t have to fucking do nothing to it just get on it.
Govt. Exh. 14a at 84.
4. Testimony defines the terms used: “Gooey, gooey” and “raindrops” refer to the upcoming conversion of powder cocaine into crack cocaine, and Mr. Duran’s expression of happiness refers to the quality of Unc’s cocaine.
Law-enforcement officers testified about the meaning of the terms
used in these calls. According to this testimony, Unc was Mr. Duran’s
supplier, “gooey, gooey” and “raindrops” referred to the making of crack
cocaine, and “hard” was code for crack cocaine. The officers also testified
that
Mr. Birch was poking fun at the quality of the cocaine that Mr. Duran had previously furnished and
Mr. Duran was telling Mr. Birch that the quality of this cocaine would leave him wanting more of it.
6 5. Mr. Duran challenges the sufficiency of evidence showing his actual possession on March 8.
Mr. Duran argues that this combination of evidence was insufficient
because there was no physical evidence of the drugs or testimony from
anyone who had seen Mr. Duran with the cocaine. According to Mr. Duran,
the government showed only that Unc had possessed cocaine, not that he
had given it to Mr. Duran.
6. Our prior opinions recognize two categories of evidence: one is sufficient to show possession, the other insufficient.
We have previously addressed the sufficiency of the evidence of drug
possession in the absence of controlled purchases or actual observation of
the drugs. Our prior cases address
recorded calls when the defendant expects to obtain drugs and
recorded calls when the defendant acknowledges possession of the drugs.
Our case does not comfortably fit entirely into either category.
a. The government needed to present circumstantial or direct evidence of possession on March 8.
Regardless of the category, the government needed to present either
direct evidence of drug possession or “enough circumstantial evidence to
support an inference that the defendant actually did possess the drugs in
7 question” on March 8. United States v. Baggett, 890 F.2d 1095, 1096 (10th
Cir. 1989).
b. Circumstantial evidence is insufficient if the jury could not reasonably infer actual possession on March 8.
Mr. Duran argues that
the government presented no testimony showing that he had obtained the cocaine on March 8 and
guilt requires direct or circumstantial evidence linking him to an observed illegal substance.
For this argument, Mr. Duran compares the government’s proof to the
evidence that we regarded as insufficient in United States v. Baggett and
United States v. Hall.
In Baggett, the government presented
recordings of three telephone calls indicating that the defendant had arranged to buy illegal drugs,
testimony that law-enforcement officers had seen the defendant meet a suspected drug dealer, and
the defendant’s acknowledgment of drug use during a one- month period.
890 F.2d 1095, 1096-97 (10th Cir. 1989). We concluded that this
combination of evidence did not reasonably support a finding that the
defendant possessed the drugs on the pertinent date. Id.
And in Hall, the government presented
telephone calls in which the defendant and a drug dealer discussed the price of drugs and agreed to meet and
8 video surveillance showing that the defendant had briefly entered the drug dealer’s car.
473 F.3d 1295, 1307 (10th Cir. 2007). We concluded that this evidence did
not show possession of drugs on the pertinent date. Id. at 1308–09.
c. The circumstantial evidence may suffice even if it does not include observation of illegal drugs.
Mr. Duran points out that the government did not present evidence of
a controlled buy or observation of drugs on March 8. Given the absence of
this evidence, Mr. Duran contends that the government’s proof was
insufficient.
For this contention, Mr. Duran points out that in Baggett, the court
said that a conviction must include “testimony linking defendant to an
observed substance that a jury can infer to be a narcotic.” Appellant’s
Opening Br. at 18–19 (emphasis in original) (quoting 890 F.2d at 1097). To
interpret this passage, we consider the context. See Illinois v. Lidster, 540
U.S. 419, 424 (2004) (stating that the Supreme Court often reads general
language in opinions “as referring in context to circumstances similar to
the circumstances then before the Court and not referring to quite different
circumstances that the Court was not then considering”); see also Wisehart
v. Davis, 408 F.3d 321, 326 (7th Cir. 2005) (“Judges expect their
pronunciamentos to be read in context.”).
9 This passage appeared in the court’s discussion of a surveillance
operation. Law-enforcement officers had watched the defendant meet with
a suspected drug dealer, and the government argued that evidence of the
meeting could prove drug possession. The court rejected this argument,
remarking that the officers had not seen any illegal drugs. Id. at 1096.
With this remark, the court did not purport to announce a blanket
requirement for testimony by someone who had seen the drugs. Indeed, the
Baggett court elsewhere acknowledged that circumstantial evidence of
possession could include
proof of “secrecy or deviousness” or
use of code words when referring to a substance.
Id. These examples would make little sense if the Baggett court had meant
to require observation of the drugs whenever possession is an element. 2 In
context, the Baggett court was referring to the importance of an “observed
substance” when the government’s evidence involves physical surveillance.
2 In the next paragraph, the Baggett court discussed United States v. Iacopelli, where the Second Circuit had regarded the evidence of possession as sufficient based on records showing that the defendant purchased and received controlled substances from a medical supplier. 483 F.2d 159, 161 (2d Cir. 1973). The Baggett court distinguished Iacopelli on the grounds that “[s]uch strong circumstantial evidence is not present in this case.” 890 F.2d at 1097. But Iacopelli’s “strong circumstantial evidence” did not include an “observed substance.” Id. 10 d. Direct evidence can include a contemporaneous acknowledgement of possession.
Observation of illegal drugs is also unnecessary when the
government presents direct evidence of possession. An example appears in
United States v. Marquez, where we held that the government had
sufficiently proven possession based on recorded telephone calls despite
the absence of any testimony involving observation of drugs or controlled
buys. 898 F.3d 1036, 1044 (10th Cir.), cert. denied, 139 S. Ct. 654 (2018).
In Marquez, we treated the recorded calls as direct evidence of possession.
Id. at 1045.
There the government presented a recording of a telephone call
between the defendant and a drug dealer. Id. In this call, the defendant and
drug dealer used code language to discuss the distribution of
methamphetamine. For one batch of methamphetamine, the defendant said:
“I still have it.” Id. And for another batch, he said: “I haven’t even got to
that yet.” Id. We held that these statements constituted direct evidence of
drug possession: “If the jury believed Marquez’ statements that he ‘still’
had the low-quality methamphetamine and ‘ha[d]n’t even got[ten] to’ the
high-quality methamphetamine, no further inference was necessary to
11 conclude that he possessed methamphetamine.” Id. Because no further
inference was necessary, the evidence was considered direct. Id.
7. Our case lacks direct evidence but has greater circumstantial evidence than was in Baggett or Hall.
In contrast, the evidence against Mr. Duran was indirect. From the
first call on March 8, the jury could reasonably infer three facts:
1. Unc had brought powder cocaine and planned to give it to Mr. Duran.
2. Mr. Duran expected to get the powder cocaine from Unc.
3. Mr. Duran was arranging for Mr. Birch to convert the powder cocaine into crack cocaine.
But more was needed to infer that Unc had given the powder cocaine to
Mr. Duran.
The need for additional circumstantial evidence distinguishes this
case from Marquez. There too no one testified about seeing the illegal
drugs. But the defendant was heard saying that he still had “it,” referring
to the drugs. See p. 11, above. Given this express statement of current
possession, the evidence against the Marquez defendant was considered
direct. See p. 11, above. Here, though, Mr. Duran never expressly
acknowledged in the call that he had obtained the cocaine from Unc. Thus,
the first recorded call on March 8 does not constitute direct evidence of
Mr. Duran’s possession on March 8.
12 But other circumstantial evidence against Mr. Duran could lead to a
reasonable inference that he had obtained the cocaine from Unc. While
driving to Mr. Birch’s apartment complex, Mr. Duran and Mr. Birch talked
on the telephone for roughly eighteen minutes. During this call, the only
audible voices were theirs and no one mentioned Unc’s presence. See Gov.
Exh. 13a. Mr. Duran told Mr. Birch: “We’re about to see bull shit work.”
And Mr. Birch replied: “Yeah I’m about to see that gooey, that gooey,
gooey.” See p. 5, above. Law-enforcement officers explained that “gooey,
gooey” referred to the conversion of powder cocaine into crack cocaine.
After Mr. Duran arrived, he spent roughly 1-1/2 hours with Mr.
Birch, which law-enforcement officers testified was enough time to convert
the powder cocaine into crack cocaine. Then, on March 11, Mr. Duran
acknowledged that he still had “the hard” (crack cocaine) that he had
obtained from Mr. Birch. Govt. Exh. 14a at 84.
13 Considering these additional facts, a jury could reasonably find that
on March 8, Mr. Duran had
obtained powder cocaine from Unc,
referred to the powder cocaine as “it” (in the statement “I want you to raindrop it”),
brought the powder cocaine to a meeting with Mr. Birch,
spent roughly 1-1/2 hours with Mr. Birch, converting the powder cocaine into crack cocaine, and
received crack cocaine from Mr. Birch (which he still had three days later).
This is “enough circumstantial evidence to support an inference that the
defendant actually did possess the drugs in question” on March 8. United
States v. Baggett, 890 F.2d 1095, 1096 (10th Cir. 1989). We thus reject Mr.
Duran’s challenge to the sufficiency of the evidence on Count 22.
C. Counts 35 and 36: Use of a Telephone to Facilitate a Drug Offense on March 8 and 11, 2017
Mr. Duran also challenges his convictions for using a telephone to
facilitate the commission of a drug offense on March 8 and March 11,
2017. See 21 U.S.C. § 843(b). According to Mr. Duran, he could not have
facilitated a drug offense
on March 8 because the government had failed to prove that Unc gave the cocaine to Mr. Duran or
on March 11 because the jury had found Mr. Duran not guilty of possessing cocaine that day.
14 We reject these challenges.
The government needed to prove that Mr. Duran had
knowingly and intentionally used a telephone or other communications device
to commit, cause, or facilitate any act constituting a drug felony.
United States v. Pickle, 863 F.3d 1240, 1257 (10th Cir. 2017). These
elements required proof that Mr. Duran’s use of a telephone made the
underlying drug crimes easier to commit. Id. But Mr. Duran could be guilty
of facilitation even if someone else had committed the underlying drug
crime. See United States v. Orihuela, 320 F.3d 1302, 1304 (11th Cir. 2003)
(“[O]ne of the elements of an offense under § 843(b) is the commission by
someone of an underlying controlled substance offense.”).
The government presented sufficient evidence of Mr. Duran’s
facilitation of drug crimes on March 8 and 11. He had knowingly and
intentionally used a telephone, and the factfinder could reasonably infer
that the calls had helped Mr. Birch to buy cocaine and convert it into crack
cocaine.
Mr. Duran argues that his partial acquittal suggested that the jury
hadn’t believed that he possessed cocaine on March 11. But an acquittal on
the underlying drug crime does not prevent a conviction on the facilitation
charges. See United States v. Powell, 469 U.S. 57, 64–65 (1984) (holding
that a defendant can be convicted of telephone facilitation despite an 15 acquittal on the predicate felony); see also United States v. Milton, 62 F.3d
1292, 1294 (10th Cir. 1995) (“[T]he Supreme Court has held that even if a
defendant is acquitted on the underlying felony, a facilitation conviction
may still stand.”). 3 The factfinder could thus reasonably conclude that Mr.
Duran had facilitated commission of a drug crime on March 11 as well as
on March 8.
3. The district court acted within its discretion in allowing Officer Fania to testify about controlled buys from Mr. Birch.
Officer Frank Fania briefly testified about a confidential informant’s
controlled buys from Mr. Birch in March 2016 and January 2017. Mr.
Duran argues that the testimony should have been excluded based on
3 In his reply brief, Mr. Duran argues that the government failed to prove the possession of any drugs on March 11, foreclosing the possibility that Mr. Duran could have facilitated the commission of a felony on that day. But Mr. Duran did not make this argument in his opening brief. There he had relied solely on his acquittal on Count 24, which charged distribution and possession of cocaine with intent to distribute 28 grams or more of a substance containing cocaine base (crack cocaine) on March 11. Expanding the argument in his reply brief was too late. United States v. Mendoza, 468 F.3d 1256, 1260–61 (10th Cir. 2006).
16 irrelevance, unfair prejudice, hearsay, and lack of personal knowledge. We
reject these arguments.
We review the district court’s evidentiary rulings for an abuse of
discretion. United States v Banks, 884 F.3d 998, 1023 (10th Cir. 2018).
B. Relevance and Unfair Prejudice
In applying the abuse-of-discretion standard, “we give the evidence
its maximum reasonable degree of relevance and its minimum reasonable
danger of unfair prejudice.” United States v. Tee, 881 F.3d 1258, 1273
(10th Cir. 2018). The district court may then exclude the evidence if the
danger of unfair prejudice substantially outweighs the probative value.
United States v. Silva, 889 F.3d 704, 712 (10th Cir. 2018), cert. denied,
139 S. Ct. 1319 (2019).
Officer Fania testified about the investigation of Mr. Birch and
described the events triggering the investigation of Mr. Duran. During the
investigation of Mr. Birch, Officer Fania was in charge of the surveillance.
The district court could reasonably regard his testimony as relevant.
The prosecution can ordinarily present overview testimony
describing the start of, and techniques in, the investigation. United States
v. Brooks, 736 F.3d 921, 930 (10th Cir. 2013). Here, for example, an
overview could help the jury understand the content and significance of the
conversations between Mr. Duran and Mr. Birch. These conversations
17 include language that Mr. Birch had previously used when referring to
cocaine and its conversion into crack cocaine. Given this prior use of
language, the jury could reasonably infer that the code words had shown
involvement in converting powder cocaine into crack cocaine.
Mr. Duran also contends that even if the testimony had been relevant,
it would have created unfair prejudice. The testimony might have been
unfairly prejudicial if it had suggested guilt by association, unfairly
impugned the defendant’s credibility, or included statements unsupported
by personal knowledge. See United States v. Banks, 884 F.3d 998, 1023
(10th Cir. 2018). But the district court could reasonably regard these
dangers as absent, for the government did not use Mr. Birch’s prior drug
sales to
show that Mr. Duran had possessed or sold cocaine in March 2017 or
impugn Mr. Duran’s credibility.
See United States v. Banks, 884 F.3d 998, 1024 (10th Cir. 2018) (upholding
the admissibility of overview testimony that had not included an opinion
on the witnesses’ trustworthiness or guilt). The district court could thus
reasonably conclude that Officer Fania’s overview testimony had not
created unfair prejudice.
18 C. Hearsay
Mr. Duran also regards Officer Fania’s testimony as inadmissible
hearsay. 4 We disagree.
At trial, Mr. Duran raised only one hearsay objection to Officer
Fania’s testimony. The government asked Officer Fania: “What about those
controlled purchases you had talked about?” R., vol. III, at 107. 5 Mr. Duran
objected, and the district court overruled the objection. Officer Fania
answered without referring to any out-of-court statements:
A. We were using an informant who made a controlled purchase from Jerrell Birch that day.
Q. On March 11th?
A. Correct. March 11, 2016.
Q. And I apologize. I might have -- I might have misunderstood you. Did you say there were two in March of 2016?
A. There were.
Q. So March 11th, and what was the other day?
A. I believe the second one was March 25th.
4 In a footnote, Mr. Duran also contends that Officer Fania’s testimony violated the Confrontation Clause. Appellant’s Opening Br. at 33 n.9. This contention was inadequately developed. See United States v. Hardiman, 297 F.3d 1116, 1131 (10th Cir. 2002) (en banc) (“Arguments raised in a perfunctory manner, such as in a footnote, are waived.”). 5 Officer Fania had previously testified that the agents were working with a confidential informant who could make a controlled buy from Mr. Birch. See R., vol. III, at 96.
19 Q. And you indicated you used a confidential human source?
A. Correct.
Q. Were the steps that you previously described as to both of these purchases used?
A. They were all of them used.
Q. Okay. So it was audio-recorded and surveillance observed these?
A. That is correct.
Q. And transpired during those controlled purchases in terms of the deal?
A. The informant made phone contact with Jerrell. Ultimately they met, and on, I believe, March 11th purchased -- or the informant purchased one ounce of crack cocaine. On the second one, on March 25th, the informant purchased two ounces of crack cocaine from Jerrell Birch?
Q. And so did those controlled purchases further your investigation of Jerrell Birch?
A. They absolutely did.
Id. at 108-09. Given the absence of any mention of an out-of-court
statement, the district court acted within its discretion in overruling the
hearsay objection. After this exchange, Mr. Duran never lodged another
hearsay objection to Officer Fania’s testimony.
Despite the absence of further objection, Mr. Duran suggests that
some of the follow-up questions elicited hearsay. Hearsay consists of an
out-of-court statement offered for the truth of the matter asserted. Fed. R.
20 Evid. 801(c). But a law-enforcement officer’s “out of court statements are
not hearsay when offered for the limited purpose of explaining why a
Government investigation was undertaken.” United States v. Freeman, 816
F.2d 558, 563 (10th Cir. 1987).
Mr. Duran suggests that some of the follow-up questions went
beyond this limited purpose. 6 But Mr. Duran does not identify any
improper questions. See United States v. Marquez, 898 F.3d 1036, 1052
(10th Cir. 2018) (stating that the issue was inadequately briefed when the
defendant broadly challenged the introduction of overview testimony
without identifying any particular testimony that had been improperly
admitted or explaining why that particular testimony had been
inadmissible). Rather than identify any improper questions, Mr. Duran
states that Officer Fania “told the jury that the confidential source [had]
engaged in three controlled buys with Mr. Birch prior to Mr. Duran’s
alleged involvement in the conspiracy.” Appellant’s Opening Br. at 30. But
Mr. Duran does not identify any of the informant’s hearsay statements. 7
6 Mr. Duran also contends that if the testimony had a limited purpose, the district court should have given a limiting instruction. But Mr. Duran did not request a limiting instruction, and the district court did not err in declining to give one sua sponte. See United States v. Record, 873 F.2d 1363, 1376 (10th Cir. 1989) (“[I]t is not error for a trial court to fail to [issue a limiting instruction] in the absence of a request by counsel.”). 7 Mr. Duran argues that the testimony could constitute hearsay even if Officer Fania hadn’t identified the informant’s actual statements. Appellant’s Opening Br. at 31–32. For this argument, Mr. Duran relies on a 21 Mr. Duran contends that even if Officer Fania hadn’t recited the
actual statements, he narrated the substance of what the informant had
said. But Mr. Duran does not identify a single out-of-court statement
recollected by Officer Fania. And even if Mr. Duran had identified the
purported hearsay testimony, he forfeited further hearsay arguments
because he never asserted another hearsay objection to any of the questions
put to Officer Fania. See United States v. Norman T., 129 F.3d 1099, 1106
(10th Cir. 1997). 8
D. Lack of Personal Knowledge
Mr. Duran argues that Officer Fania lacked personal knowledge of
the controlled buys from Mr. Birch. This argument is unpreserved and
invalid.
We address preservation in our local rules. Rule 28.1(A) requires
appellants to cite in the record where the issue was raised and decided. Mr.
First Circuit opinion: United States v. Meises, 645 F.3d 5, 22 n.25 (1st Cir. 2011). But we have declined to follow Meises. See, e.g., United States v. Fletcher, 497 F. App’x 795, 804–05 (10th Cir. 2012) (unpublished) (declining to follow Meises and upholding law-enforcement testimony about the roles played by various participants in illegal activities); see also United States v. Marquez, 898 F.3d 1036, 1051–52 (10th Cir. 2018) (stating that Meises does not “establish the well-settled law of this circuit”). 8 Despite the forfeiture, Mr. Duran could have argued plain error. United States v. Kearn, 863 F.3d 1299, 1313 (10th Cir. 2017). But he didn’t. See id. (declining to consider a forfeited contention based on the failure to urge plain error).
22 Duran complied with this rule by citing Volume III, pages 107–09. But
these pages do not contain any objection to Officer Fania’s testimony
based on a lack of personal knowledge. Indeed, we have scoured the record
and find no objection to Officer Fania’s testimony based on a lack of
personal knowledge.
Mr. Duran did object to one question on the ground that it called for
hearsay. See p. 19, above. But the rules governing hearsay and personal
knowledge are distinct and address different evidentiary defects. See
United States v. Mandel, 591 F.2d 1347, 1369 (4th Cir. 1979) (discussing
the differences between the rules addressing hearsay and personal
knowledge); Agfa-Gevaert, A.G. v. A.B. Dick Co., 879 F.2d 1518, 1523
(7th Cir. 1989) (“Knowledge acquired through others may still be personal
knowledge within the meaning of Fed. R. Evid. 602, rather than hearsay,
which is the repetition of a statement made by someone else—a statement
offered on the authority of the out-of-court declarant and not vouched for
as to truth by the actual witness.”). So the assertion of a hearsay objection
did not preserve an argument that Officer Fania lacked personal
knowledge. See Schulenberg v. BNSF Rw. Co., 911 F.3d 1276, 1288 n.6
(10th Cir. 2018) (concluding that the appellant’s objection on hearsay
grounds failed to preserve an objection involving a lack of personal
knowledge).
23 Even if Mr. Duran had preserved the objection, however, it would
have failed. The foundational requirement for personal knowledge “is not
difficult to meet.” United States v. de Lopez, 761 F.3d 1123, 1132 (10th
Cir. 2014). The district court considers only whether “a rational juror
could conclude based on a witness’s testimony that he or she has personal
knowledge of a fact.” Id.
Officer Fania testified that he had participated in the arrangements
for the controlled buys. Given this testimony, the district court had the
discretion to find personal knowledge for Officer Fania’s testimony about
the controlled buys. See United States v. Marquez, 898 F.3d 1036, 1049
(10th Cir. 2018) (holding that an officer’s knowledge of recorded
conversations provided personal knowledge). 9 We would thus reject this
appellate argument even if it had been preserved.
4. The district court acted within its discretion in allowing Officer Rossi to testify about the meaning of recorded calls.
After the government played recordings of calls in February 2017 and
on March 8, 2017, Officer Rossi interpreted some of the language. On
9 The government points out that Officer Fania testified as one of the two case agents, using the first-person “we” to describe what his team of investigators had done. In response, Mr. Duran denies that Officer Fania’s use of the pronoun “we” was enough to show personal knowledge. But a rational factfinder could conclude that Officer Fania, as one of the two case agents, knew what his team of investigators had done. See United States v. Decoud, 456 F.3d 996, 1012 (9th Cir. 2006) (concluding that a case agent had personal knowledge based on his participation in the surveillance and interactions with a confidential informant). 24 appeal, Mr. Duran argues that the testimony was inadmissible because
Officer Rossi had improperly (1) expressed an opinion on Mr. Duran’s
guilt, (2) based his opinion on inadmissible hearsay, and (3) expressed
views that were unfairly prejudicial. We reject these arguments.
A. Calls in February 2017
For the calls in February 2017, Officer Rossi testified that
Mr. Duran appeared to be trying to collect money from Mr. Birch and
the discussion of “putting it in the water” suggested drug dealing.
Mr. Duran did not object to any of this testimony. As a result, he forfeited
his current appellate challenge to this part of the testimony. United States
v. Wardell, 591 F.3d 1309–10 (10th Cir. 2009). Though we could entertain
an argument involving plain error, Mr. Duran has not urged plain error. See
note 8, above. We would thus ordinarily decline to consider this argument.
See note 8, above.
But Mr. Duran’s appellate argument would fail even if he had
preserved the challenge. If the challenge had been preserved, we would
apply the abuse-of-discretion standard. United States v. Comanche, 577
F.3d 1261, 1266 (10th Cir. 2009). Applying this standard, we would
consider Officer Rossi’s testimony, which had used the recorded calls to
explain why his team broadened the investigation to include Mr. Duran.
25 Mr. Duran argues that Officer Rossi was improperly providing his lay
opinion about the conspiracy and the reliability of the investigation. But
Mr. Rossi did not testify about his conclusions from the February calls; he
simply explained why investigators had turned their attention to Mr.
Duran. See United States v. Warman, 578 F.3d 320, 348 (6th Cir. 2009)
(concluding that law-enforcement officers’ testimony, which identified the
defendant as a supplier, had been relevant and not unfairly prejudicial
because the testimony had “explained the reason for the government’s
investigation” of the defendant and others). So even if Mr. Duran had
objected, the district court would have had the discretion to permit this
part of Officer Rossi’s testimony.
B. Calls on March 8, 2017
Officer Rossi also testified about his interpretation of five calls made
on March 8, 2017. According to Officer Rossi, these calls showed that Mr.
Duran had obtained cocaine from Unc, arranged to meet Mr. Birch, and
provided Mr. Birch with cocaine. In Officer Rossi’s view, two later
telephone calls confirmed that the two men had met on March 8 to convert
the powder cocaine into crack cocaine. Mr. Duran contends that the
testimony improperly communicated Officer Rossi’s opinions on guilt and
26 the meaning of code words, was based on hearsay, and was unfairly
prejudicial. We reject these contentions.
1. Opinions on Guilt and the Meaning of Code Words
Mr. Duran contends that Officer Rossi improperly testified about his
own beliefs of Mr. Duran’s guilt and the meaning of code words. We reject
these contentions.
According to Mr. Duran, this testimony improperly waded into guilt
or innocence, a matter reserved for the jury. We reject this argument.
Law-enforcement agents can ordinarily testify that the defendants
were engaged in drug trafficking because this testimony constitutes
opinion evidence on a fact issue. See United States v. Barbee, 968 F.2d
1026, 1031–32 (10th Cir. 1992); see also United States v. Marquez, 898
F.3d 1039, 1048–49 (10th Cir. 2018) (holding that a law-enforcement
officer could testify about a defendant’s role as a drug distributor because
the testimony was factual and objectively based on the officer’s knowledge
of recorded telephone calls).
Mr. Duran contends that Officer Rossi went too far by expressing his
belief that Mr. Duran was guilty. We disagree with this characterization of
the testimony. Officer Rossi simply explained why he had turned his
attention toward Mr. Duran: After surveilling Mr. Birch and listening to
his calls, Officer Rossi broadened the investigation because he thought that
Mr. Duran would help Mr. Birch convert the powder cocaine into crack
27 cocaine. See United States v. MacKay, 715 F.3d 807, 838 (10th Cir. 2013)
(holding that the district court did not err in allowing an expert witness to
testify about her observation based on the evidence rather than simply tell
the jury what result to reach). Officer Rossi thus framed his opinion in the
past tense by referring to his earlier beliefs based on what he had observed:
On March 8, based on the calls, I believed that Mr. Duran was going to meet Mr. Birch at his residence on Paris -- at 1650 Paris. During that, Mr. Duran was going to provide Mr. Birch with what Unc’s had provided him, which we believed -- and other investigators as well believed that Mr. Birch was going to assist Mr. Duran in making crack cocaine from the powder cocaine received from Unc’s.
R., vol. III, at 330–31 (emphasis added). The district court did not abuse
its discretion by allowing Officer Rossi to testify about how his earlier
beliefs had led the officers to broaden their investigation.
Officer Rossi also testified about the meaning of code words used by
Mr. Duran and Mr. Birch. The district court did not err in allowing this
testimony, for it could reasonably be considered a lay opinion based on
information learned through the investigation. See United States v. Cheek,
740 F.3d 440, 447–48 (7th Cir. 2014) (holding that an agent’s testimony
about the meaning of drug-code words was admissible as a lay opinion
based on personal observations and perceptions derived from his
investigation); see also United States v. Akins, 746 F.3d 590, 599 (5th Cir.
2014) (“[T]estimony about the meaning of drug code words can be within
28 the proper ambit of a lay witness with extensive involvement in the
underlying investigation.”).
2. Hearsay
Mr. Duran also argues that Officer Rossi based his testimony on
hearsay. But Mr. Duran forfeited this argument by failing to lodge a
hearsay objection to Officer Rossi’s testimony about the March 8 calls. See
p. 22, above. We could ordinarily consider the possibility of plain error.
See note 8, above. But Mr. Duran has not alleged plain error, so we decline
to consider Mr. Duran’s appellate challenge. See note 8, above.
3. Unfair Prejudice
Mr. Duran also contends that the testimony was unfairly prejudicial
because the jury might have accepted Officer Rossi’s testimony “as
gospel.” Appellant’s Opening Br. at 43. For this contention, the district
court considers whether the danger of unfair prejudice substantially
outweighs the testimony’s relevance. Fed. R. Evid. 403. In addressing this
inquiry, we give the evidence its “maximum reasonable degree of relevance
and its minimum reasonable danger of unfair prejudice.” United States v.
Tee, 881 F.3d 1258, 1273 (10th Cir. 2018); see p. 17, above.
Viewing the evidence in this light, we conclude that the district court
need not have viewed the unfair prejudice as substantially greater than the
testimony’s relevance. The calls on March 8 used peculiar language that
would have made little sense in the absence of guidance about how Mr.
29 Duran and Mr. Birch had communicated with one other. The district court
could thus reasonably conclude that the testimony was admissible despite
the possibility of unfair prejudice. See United States v. Valbrun, 877 F.3d
440, 444–45 (1st Cir. 2017) (concluding that the district court had the
discretion to find lay testimony about drug-code words admissible and
rejecting an appellate argument based on the danger of unfair prejudice).
The district court also took measures to ensure that the jury viewed
Officer Rossi’s testimony with the proper perspective. During the
testimony, the court told the jury that
Officer Rossi was “reaching conclusions as the case agent, which explain where he’s coming from in this case” and
the jury was “to decide if they agree with him.” 10
And after the close of the evidence, the district court instructed the jury to
“[r]emember at all times that [they were] judges of the facts” and were to
decide if the government had proven guilt “beyond a reasonable doubt.” 11
Given these instructions, Officer Rossi’s testimony did not impede
the jury’s assessment of the evidence. The district court thus did not abuse
its discretion in overruling Mr. Duran’s objection involving unfair
prejudice.
10 R., vol. III, at 311. 11 R., vol. I, at 329. 30 * * *
In summary, the district court did not err in allowing Officer Rossi to
testify about the meaning of the recorded calls. Mr. Duran forfeited his
appellate argument about the calls recorded in February 2017. For the calls
recorded on March 8, 2017, the district court acted within its discretion in
allowing the testimony.
5. The district court acted within its discretion in allowing Agent Peterson to testify about coded language.
Finally, Mr. Duran contends that the district court erred in admitting
expert testimony by Agent Donald Peterson. The government presented
Agent Peterson as an expert on drug-trafficking trends, patterns, and
communications. Mr. Duran objected to Agent Peterson’s qualifications as
an expert on drug dealers’ use of code language. The district court
overruled the objection, concluding that “by training and experience
[Agent Peterson] has sufficient expertise to at least be permitted to express
opinions.” R. vol. III, at 444.
With this objection overruled, Agent Peterson testified that drug
dealers typically do not use the words “crack” or “cocaine” when speaking
on the telephone, noting that drug dealers often use code words like
“bread,” “loot,” “paperwork,” “titles” (money), “rack” (a thousand
dollars), “work” (cocaine), “soft” (powder cocaine”), “hard” (crack
cocaine), “heezy” (half of a kilogram or half of an ounce), “raindrop,” and
31 “gooey, gooey” (the process of converting cocaine into crack cocaine). See
R., vol. III, at 462–64, 484, 487–88.
the district court failed to make adequate findings on the reliability of the testimony and
Agent Peterson was not qualified to testify about the use of code language.
Mr. Duran observes that Agent Peterson had never testified as an expert in
a jury trial, had never spoken about the term “raindrops,” had not
remembered speaking about the term “heezy,” and had not relied on any
publications.
The district court must act as a gatekeeper, ensuring that the
proffered opinions rest on a reliable foundation and are relevant to the
issues. United States v. Roach, 582 F.3d 1192, 1206 (10th Cir. 2009).
Although “the gatekeeper inquiry under Rule 702 is ultimately a flexible
determination, . . . a district court, when faced with a party’s objection,
must adequately demonstrate by specific findings on the record that it has
performed its duty as gatekeeper.” Goebel v. Denver & Rio Grande W. R.R.
Co., 215 F.3d 1083, 1088 (10th Cir. 2000).
We consider de novo whether the court applied the proper standard
for allowing expert testimony and made sufficient findings. Roach, 582
F.3d at 1206. We then determine whether the rulings fell within the district
court’s discretion. Id. 32 The district court’s findings were adequate. The court found
sufficient expertise based on Agent Peterson’s training and expertise; more
detailed findings were not required. See, e.g., United States v. Cui Qin
Zhang, 458 F.3d 1126, 1129 (10th Cir. 2006).
These findings were supported by the record. Agent Peterson had
extensive experience with drug trafficking cases: over 16 years’ experience
in law enforcement, including observation of 75 to 100 drug deals and
more than 50 controlled buys. In light of this experience, the district court
acted within its discretion in allowing Agent Peterson to testify about the
use of coded language.
6. Conclusion
We thus affirm Mr. Duran’s convictions.