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United States v. Duran

United States Court of Appeals, Tenth Circuit

October 9, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
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 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. 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.

         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.

         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.

         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 ...

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