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United States v. Marquez

United States Court of Appeals, Tenth Circuit

August 7, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JESSIE JESUS MARQUEZ, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:13-CR-03367-RB-2)

          James L. Hankins, Edmond, Oklahoma, for Defendant-Appellant.

          Sarah M. Davenport, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, with her on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, MORITZ and EID, Circuit Judges.

          MORITZ, CIRCUIT JUDGE

         Jessie Marquez appeals his convictions for six drug-related crimes, including conspiracy to distribute 500 grams of methamphetamine. Marquez raises three issues: he challenges the sufficiency of the evidence supporting each of his convictions, he asserts that the district court erred by questioning a witness, and he contends that the district court shouldn't have admitted certain testimony from two of the government's witnesses. We reject each of Marquez' arguments. First, we conclude that the evidence was sufficient for a rational jury to find Marquez guilty of using a phone to facilitate a drug felony, participating in a conspiracy to distribute over 500 grams of methamphetamine, and possessing methamphetamine with the intent to distribute it. Next, we hold that the district court didn't err when it asked a witness one question to clarify a factual matter. Last, we find that the district court didn't abuse its discretion or plainly err when it admitted testimony from government witnesses. Accordingly, we affirm.

         Background

         In January 2013, law enforcement began investigating Robert Christner's methamphetamine dealings in and around Alamogordo, New Mexico. Investigators conducted several controlled drug purchases from Christner and began attempting to identify his suppliers and distributors. They also surveilled and interrupted two drug deals-one in March 2013 and one in June 2013-in which Christner attempted to buy several pounds of methamphetamine from suppliers in Arizona.

         During the course of this investigation, investigators obtained wiretaps on Christner's phones, allowing them to intercept many of his calls and text messages. Then, when Christner set up meetings over the phone, investigators sometimes surveilled those meetings. In one such instance, they identified Marquez as someone who had spoken to Christner on the phone about obtaining methamphetamine and had arranged to meet up with him. And after identifying Marquez, they obtained a wiretap for his phone as well. Highly summarized, the intercepted calls between Christner and Marquez suggested that (1) Marquez distributed methamphetamine that he obtained from Christner and (2) when Christner's methamphetamine supplier fell through, Marquez tried to find him a new supplier.

         The investigation as a whole resulted in an indictment charging Marquez and 17 other individuals with conspiracy to distribute "500 grams and more" of methamphetamine.[1] R. vol. 1, 2. The indictment further charged Marquez with two counts of possessing methamphetamine with the intent to distribute and four counts of using a phone to facilitate a drug felony.

         Marquez proceeded to trial, and the jury convicted him of conspiracy, all four phone counts, and one possession-with-intent count. The district court sentenced him to 121 months in prison. Marquez appeals.

         Analysis

         I. Sufficiency of the Evidence

         Marquez first challenges the sufficiency of the evidence supporting each of his six convictions. We review sufficiency questions de novo and look at "the evidence in the light most favorable to the government to determine whether any rational jury could have found guilt beyond a reasonable doubt." United States v. Dahda, 853 F.3d 1101, 1106 (10th Cir. 2017), aff'd on other grounds, 138 S.Ct. 1491 (2018).

         A. Using a Phone to Facilitate a Drug Felony

         Marquez first maintains that the evidence wasn't sufficient to support his convictions for using a phone to facilitate a drug felony because the government didn't "produce any witness who claimed to be familiar with Marquez'[] voice in real life and who could then identify it . . . as the voice on the calls." Aplt. Br. 27. As a result, Marquez asserts, a rational jury could not have concluded that the voice on the intercepted calls was his. But as the record demonstrates, the government presented substantial circumstantial evidence of Marquez' identity.

         DEA Case Agent Amy Billhymer and DEA Agent Conan Becknell testified about how they identified Marquez. Specifically, on April 19, 2013, investigators intercepted a call from Christner to a phone number designated as "Target Telephone 7." R. vol. 3, 129. In the call, Christner arranged to meet with an individual and accompany that individual to buy four ounces of methamphetamine for $3, 200. Christner told this individual that he'd "be on foot," Supp. R. 89, and that the individual should pick him up so they could then go buy the drugs. Christner then made a second intercepted call, in which he arranged to meet Stephen Morales at a Pic Quick convenience store. Christner indicated to Morales that he wanted to pick up money from Morales for the drug purchase he planned to make with the individual on the first call. At the end of the call with Morales, Christner said, "[T]here's my ride." Id. at 91. He asked Morales to go to the Pic Quick "right now." Id.

         At this time, Becknell was surveilling Christner, who was standing on a street corner. Becknell watched as a gold Mitsubishi pulled up and Christner got into the passenger side of the vehicle. Becknell then followed the Mitsubishi as it drove to a Pic Quick and parked. Becknell followed Christner and the Mitsubishi's driver into the Pic Quick, at one point passing "within a couple of feet" of the two men. R. vol. 3, 212. Becknell then watched Christner leave the Pic Quick, get into a green car for a few minutes, and then get back into the Mitsubishi.

         Later that day, Billhymer learned that Rose Marquez owned the Mitsubishi and that Jessie Marquez was her son. Billhymer showed Jessie Marquez' driver's license picture to Becknell, and Becknell identified him as the driver of the Mitsubishi. Becknell also identified Marquez in court as the driver.

         The government presented additional evidence corroborating that it was Marquez' voice the agents intercepted on Target Telephone 7. First, in another call to Target Telephone 7, the speaker who answered the phone said he was "at [his] house in town. Over here on Hoagland." Supp. R. 78. Investigators discovered that Marquez had two residences, one of which had an address on Hoagland. Second, in another call to Target Telephone 7, the speaker who answered the phone mentioned that he worked at or near a Chuck E. Cheese at the mall, and investigators confirmed that Marquez worked there. Third, and perhaps most critically, in a call made by Target Telephone 7, the caller identified himself as "Jessie"-Marquez' first name. Id. at 134.

         Marquez points out that Billhymer testified she'd never actually heard Marquez speak in person. Nor did the government present a witness familiar with Marquez' voice to testify that Marquez was speaking on the Target Telephone 7 calls. But as we have outlined, the government presented strong circumstantial evidence that Marquez was the speaker on Target Telephone 7. And Marquez presents no other challenge to the sufficiency of the evidence for these counts. Thus, viewed in the light most favorable to the government, the evidence was sufficient for a rational jury to conclude that Marquez, speaking on Target Telephone 7, used a phone to facilitate a drug felony. See Dahda, 853 F.3d at 1106.

         B. Conspiracy

         Marquez also challenges the sufficiency of the evidence supporting his conspiracy conviction. To convict Marquez on this count, the government had to prove that (1) "two or more persons agreed to violate the law," (2) Marquez "knew the essential objectives of the conspiracy," (3) Marquez "knowingly and voluntarily participated in the conspiracy," and (4) "the alleged co[]conspirators were interdependent." Id. at 1107. Additionally, to establish the scope of the charged conspiracy, the government had to prove that it involved "500 grams and more" of methamphetamine. R. vol. 1, 2. Marquez challenges all but the first of these elements, and his overarching argument is that the government failed to prove that he participated in a broad, 18-person conspiracy involving over 500 grams of methamphetamine.

         First, Marquez points out that the evidence showed he interacted only with Christner and not with any of the other 17 people charged in this conspiracy. He argues that his separation from the rest of the group means that he didn't "kn[o]w the essential objectives of the conspiracy." Dahda, 853 F.3d at 1107. But being separate from the remainder of the conspiracy isn't determinative: "A conspirator 'need not know of the existence or identity of the other members of the conspiracy or the full extent of the conspiracy.'" United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992) (quoting United States v. Metro. Enters., Inc., 728 F.2d 444, 451 (10th Cir. 1984)). Instead, a conspirator must simply be generally aware of the conspiracy's scope and objective. Id. at 670.

         Here, contrary to Marquez' argument, the government's evidence showed that Marquez was generally aware of the full scope and objective of the conspiracy, which was to distribute over 500 grams of methamphetamine. True, the evidence showed that Marquez himself distributed methamphetamine from Christner only in ounce quantities, not in pounds. But several of the intercepted phone calls showed that Marquez helped Christner locate a new methamphetamine supplier-one who was willing to sell Christner two pounds of methamphetamine per week. Specifically, Marquez reported to Christner, "I got us two a week. We're talking the p's at least, not three, but I got us two." Supp. R. 76. Law-enforcement officers testified that "p's" means "pounds," R. vol. 3, 332, that this conversation was about pounds of methamphetamine, and that there are "about 454 grams in a pound," id. at 322. So when Marquez reported that he "got [them]" two pounds of methamphetamine per week, he was referring to an amount well over the 500 grams charged in the indictment.

         From these facts, viewed in the light most favorable to the government, a reasonable jury could conclude both that (1) the essential objective of the conspiracy was to distribute over 500 grams of methamphetamine and (2) Marquez knew as much. That the evidence didn't show Marquez interacting with other charged coconspirators isn't determinative: a conspiracy requires only "two or ...


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