from the United States District Court for the District of
Colorado (D.C. No. 1:17-CR-00135-RBJ-7)
Mueller, Haddon, Morgan, and Foreman, P.C., Denver, Colorado,
for the Defendant - Appellant.
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 -
BACHARACH, BALDOCK, and EBEL, Circuit Judges.
BACHARACH, Circuit Judge.
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.
reject these arguments.
An investigation into Mr. Jerrell Birch
leads to the convictions of Mr. Duran
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.
• testimony from law-enforcement officers describing the
investigation and interpreting the conversations.
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
distribute crack cocaine on March 8 and 11, 2017
(see 21 U.S.C. § 843(b)).
The evidence was sufficient to convict on Counts 22, 35, and
Duran challenges the sufficiency of the evidence supporting
Counts 22, 35, and 36. We reject these challenges.
Standard of Review
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.
Count 22: Distributing and Possessing Cocaine on March 8,
Count 22, the government presented evidence that included
both recorded calls and surveillance.
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."
the calls took place on March 8, 2017. In these calls, Mr.
Duran acknowledged the presence of someone named
"Unc," telling Mr. Birch to "raindrop
it." And Mr. Birch noted his anticipation of
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.
Birch: That's crazy.
Duran: Fucking happy as a motherfucker.
Birch: When did he get
Duran: Raindrops, drop tops.
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.
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.
Duran: We're about to see bull shit work.
Birch: Yeah I'm about to see that gooey, that 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.
Mr. Duran and Mr. Birch meet later the same day for about
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.
Mr. Duran later acknowledges that he still
had the "hard" given to him
by Mr. Birch.
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.
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
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.
Mr. Duran challenges the sufficiency of evidence
showing his actual possession on March
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