from the United States District Court for the District of New
Mexico (D.C. No. 2:13-CR-03367-RB-2)
L. Hankins, Edmond, Oklahoma, for Defendant-Appellant.
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.
TYMKOVICH, Chief Judge, MORITZ and EID, Circuit Judges.
MORITZ, CIRCUIT JUDGE
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.
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.
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.
investigation as a whole resulted in an indictment charging
Marquez and 17 other individuals with conspiracy to
distribute "500 grams and more" of
methamphetamine. 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.
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.
Sufficiency of the Evidence
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.
Using a Phone to Facilitate a Drug Felony
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.
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.
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.
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
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
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
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
coconspirators 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.
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.
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.
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 ...