United States v. Marquez
Opinion
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 *1040 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
,
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 *1041 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
,
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
*1042
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."
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
,
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 more" people, and the evidence showed Marquez conspired with Christner.
Dahda
,
This same evidence supports the conclusion that Marquez "knowingly and voluntarily participated" in this conspiracy.
Marquez challenges the interdependence element as well, for which "the evidence must show the 'coconspirators intend[ed] to act together for their shared mutual benefit within the scope of the conspiracy charged.' "
Contrary to Marquez' argument, the government presented sufficient evidence of interdependence. First, Marquez' assistance in finding Christner a new methamphetamine supplier was undoubtedly intended to facilitate the drug conspiracy.
See
Marquez also frames his sufficiency argument in a different light, insisting that a fatal variance occurred because the evidence at trial only proved that he participated in smaller, individual conspiracies and not the large, 500-gram conspiracy charged in the indictment.
See
United States v. Carnagie
,
Thus, we reject Marquez' contention that a variance occurred in this case.
See
United States v. Fishman
,
C. Possession with Intent to Distribute
Marquez next argues that the government's evidence was insufficient to prove that he possessed methamphetamine *1044 with the intent to distribute it. The indictment charged Marquez with possessing and intending to distribute methamphetamine "[o]n or about March 16, 2013." R. vol. 1, 18. The government's only evidence for this count was one intercepted phone call between Marquez and Christner on March 16. It introduced no other evidence to show that Marquez possessed drugs on that date.
In the call, Christner and Marquez didn't specifically use the words "drugs" or "methamphetamine." But government witnesses testified that they were discussing methamphetamine in coded language. Essentially, the two discussed Marquez' progress in distributing a prior batch of low-quality methamphetamine and a new batch of high-quality methamphetamine. Marquez told Christner-in reference to the low-quality batch-"I still have it." Supp. R. 25. Christner replied that if people were complaining about the low quality, Marquez should sell the new, higher-quality batch. Marquez told Christner that people weren't complaining. And about the high-quality batch, Marquez said, "I haven't even got to that yet."
Marquez contends that this intercepted call wasn't sufficient to prove that he possessed methamphetamine on March 16. In support, he cites two cases from this Circuit,
United States v. Hall
,
As Marquez points out, in both
Hall
and
Baggett
, this court found intercepted phone calls to be insufficient, standing alone, to support possession convictions.
See
Hall
,
The facts in
Bryce
are similarly distinguishable. In the phone calls at issue there, the defendant said that he "possess[ed] a large quantity of powder cocaine, maintained that he had sold or otherwise distributed several kilograms to others, and agreed to sell one kilogram ... for $22,500."
In contrast, Marquez' statements here were unequivocal. He plainly told Christner that he possessed two batches of methamphetamine and that he had been distributing only the low-quality batch. And here, unlike in Bryce , there was no evidence to undercut Marquez' straightforward assertion of possession.
In short, we reject Marquez' argument that
Hall
,
Baggett
, and
Bryce
stand for the proposition that phone calls are never sufficient, standing alone, to support a possession conviction. In each of those cases, the government presented only circumstantial evidence of possession, such as phone calls showing a plan to purchase drugs or containing unreliable statements of possession. From such circumstantial evidence, a jury could only determine possession by inferring that the drug purchase actually took place or that some other evidence corroborated the unreliable statement. Indeed, the
Baggett
court noted that "[i]f the prosecution is not going to present direct evidence of drug possession, its circumstantial evidence must include some testimony linking defendant to an observed substance that a jury can infer to be a narcotic."
But in this case, the government
did
present "direct evidence of drug possession."
II. District Court's Witness Examination
Marquez next asserts that the district court erred when it questioned Agent Billhymer in front of the jury. As Marquez acknowledges, he did not object to this questioning below, so we review for plain error.
See
United States v. Ibarra-Diaz
,
*1046
First, although Marquez insists that it was "unusual" for the district court to question a witness, Aplt. Br. 10, 30, a district court's "authority to question witnesses is ... beyond dispute,"
United States v. Albers
,
Marquez insists that the district court's question was improper and prejudiced the jury against him. Specifically, he contends that the question made it appear to the jury that the court thought Marquez was dealing in pounds of methamphetamine. Marquez is correct that judges can overstep the bounds of their authority in questioning witnesses.
See, e.g.
,
United States v. Bland
,
But contrary to Marquez' assertion, the district court's question here didn't create the appearance of bias; it merely clarified a factual matter.
See
Albers
,
Marquez doesn't cite any cases from this Circuit to support his argument that the district court erred in asking this question, and the cases he does cite are easily distinguishable: each involved a district court going far beyond asking a single question clarifying a factual matter.
See
Quercia v. United States
,
Here, the district court's question did not advocate for the government or create the impression of bias. Rather, the question merely sought clarification of a factual matter-a factual matter that even defense counsel thought would benefit from such clarification.
See
Albers
,
III. The DEA Agents' Testimony
Marquez next challenges the admission of certain testimony from Agents Billhymer and Becknell. We consider each of his challenges in turn.
A. Christner's Out-of-Court Statements
Marquez first suggests that some of Billhymer's testimony violated the Confrontation Clause.
2
We review this issue de novo.
United States v. Garcia
,
The specific testimony at issue here involved a single question and a single answer. The prosecutor asked Billhymer what she learned during an interview that she conducted with Christner before his death.
3
Marquez' counsel objected on Confrontation Clause grounds, and the district court ruled that it would permit the government to "go a little bit down this path, but [it didn't] know how far." R. vol. 3, 243. The prosecutor then rephrased her question and asked Billhymer, "Did that conversation [with Christner] confirm generally what you believed you understood from the investigation about the structure of ... Christner's drug business?"
The Confrontation Clause of the Sixth Amendment guarantees criminal defendants the right to confront the witnesses against them.
See
U.S. Const. amend VI ;
Crawford v. Washington
,
But not all Confrontation Clause violations warrant relief; such errors can be harmless, as the government argues is the case here. A Confrontation Clause violation is harmless if it's clear beyond a reasonable doubt that "the properly admitted evidence of guilt is so overwhelming" that "the prejudicial effect of the improperly admitted evidence is ... insignificant by comparison."
United States v. Edwards
,
Here, Billhymer's limited testimony about what Christner told her was insignificant in the context of the other evidence against Marquez.
See
United States v. Chavez
,
Marquez asserts that Billhymer's testimony about Christner's interview was "the lynchpin used by the [g]overnment and its law[-]enforcement witness to 'confirm' its theory of the case and speculations against Marquez." Rep. Br. 16 (quoting R. vol. 3, 243). But the intercepted calls in which Marquez discussed buying and selling methamphetamine were far more essential to the government's case and more damning to Marquez' defense. And notably, in its closing argument, the government didn't even mention Billhymer's interview of Christner. Instead, it replayed excerpts from the intercepted calls.
See
Chavez
,
B. Marquez' Role in the Conspiracy
Marquez next challenges the admission of Billhymer's testimony about Marquez' role in the conspiracy. 4 Billhymer twice testified specifically about Marquez' role. First, early in the trial, Billhymer testified that as of March 2013, based on intercepted calls and surveillance, she believed that Marquez distributed methamphetamine he received from Christner. Billhymer later repeated this assertion, *1049 testifying that as of June 2013, she believed that Marquez was one of Christner's distributors.
Because Marquez' counsel objected below, we review the admission of this evidence for an abuse of discretion.
See
United States v. Brooks
,
Federal Rule of Evidence 701 governs lay opinion testimony, which must be (1) "rationally based on the witness's perception," (2) "helpful to clearly understanding the witness's testimony or to determining a fact in issue," and (3) "not based on scientific, technical, or other specialized knowledge." The purpose of Rule 701 is "to exclude testimony where the witness is no better suited than the jury to make the judgment at issue, providing assurance against the admission of opinions [that] merely tell the jury what result to reach."
Brooks
,
Relying on
United States v. Williams
,
We're not bound by the D.C. Circuit's objective-basis rule.
See
Jordan v. Sosa
,
Specifically, one of the first calls the government played for the jury included Marquez and Christner discussing the distribution of methamphetamine that Marquez received from Christner. Shortly thereafter, on redirect examination, Billhymer testified that the intercepted calls up to this point led her to believe that Marquez was a distributor for Christner. Likewise, Billhymer's second statement about Marquez' role was also based on an intercepted call. The government played a call in which Marquez asked Christner to save him an ounce and a half of methamphetamine. Billhymer then explained that, based on this call, she believed Marquez' role was distributing methamphetamine for Christner. Thus, Billhymer's lay opinion testimony was based on her personal observations, and the district court did not abuse its discretion in admitting it. 5
*1050 C. Billhymer's Code-Word Testimony
Marquez next challenges Billhymer's testimony about the meaning of code words used in the intercepted calls. Because Marquez didn't object to this testimony during trial, we apply plain-error review.
See
Brooks
,
Marquez argues that Billhymer's code-word testimony was expert testimony improperly masquerading as lay testimony. He insists that her explanation of code-word meanings was based on her general law-enforcement experience rather than her personal knowledge and was therefore inadmissible under Rule 701.
See
United States v. Yeley-Davis
,
Contrary to Marquez' assertion, this was not a situation in which Billhymer's knowledge about the meaning of coded drug language was based on past investigations; her testimony was based on what she learned during
this
investigation.
See
United States v. Miranda
,
D. Agent Becknell's Lay and Expert Testimony
Marquez also challenges some of Agent Becknell's testimony, asserting that it improperly conflated lay and expert testimony. Marquez again acknowledges that he didn't object to this testimony below and urges us to find plain error.
See
Like Billhymer, Becknell testified about the meaning of certain code words in drug *1051 culture. But unlike Billhymer, Becknell testified as an expert under Federal Rule of Evidence 702. His particular expertise was "in organizational structure and the use of terminology in methamphetamine organizations." R. vol. 3, 307.
A district court may permit expert testimony if "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702(a). In drug cases, expert testimony is often admitted to help the jury understand drug terminology.
See
United States v. Quintana
,
Relying on
United States v. Garcia
,
But even if we assume that Becknell similarly conflated lay and expert testimony, any error in admitting that testimony wasn't plain. For an error to be plain and contrary to well-settled law, either this court or the Supreme Court must have addressed the issue.
See
Brooks
,
E. Overview Testimony
Finally, Marquez also generally objects to "[n]early the entirety of [Billhymer's and Becknell's] respective testimonies" as improper overview testimony. Rep. Br. 22. He didn't raise this objection below, so plain-error review again applies.
See
Brooks
,
Overview testimony is related to opinion testimony, but it's "a broader category of evidence."
Marquez argues against the use of overview testimony generally, stating that its use is "a disturbing trend in these drug conspiracy cases." Aplt. Br. 41. In support, he cites three cases from the First Circuit disapproving of such testimony.
See
Meises
,
*1052
For two reasons, we reject Marquez' argument and reliance on these out-of-circuit cases. First, as the government asserts, Marquez doesn't identify any particular testimony from either Billhymer or Becknell that qualifies as overview testimony, let alone explain why that particular overview testimony was improper.
Cf.
United States v. Kamahele
,
Second, any error in admitting any alleged overview testimony wasn't plain because the First Circuit cases on which Marquez relies don't establish the well-settled law of this circuit.
See
Brooks
,
Conclusion
To summarize, we reject each of Marquez' challenges on appeal. The evidence was sufficient for a rational jury to conclude that Marquez used a phone to facilitate a drug felony on four occasions; that he was a member of a conspiracy to distribute over 500 grams of methamphetamine; and that on March 16, he possessed methamphetamine with intent to distribute. And the district court didn't err when it asked a witness one question to clarify a factual matter. Nor did it abuse its discretion or plainly err in admitting testimony from government agents. Accordingly, we affirm.
Christner himself wasn't charged because he died of complications from heart surgery a few months before the government filed the indictment.
Marquez' opening brief includes a single sentence on this issue and fails to explain why Billhymer's testimony violated the Confrontation Clause. Nor does Marquez provide the applicable standard of review.
See
Fed. R. App. P. 28(a)(8) (requiring argument to include "appellant's contentions and the reasons for them" as well as "a concise statement of the applicable standard of review"). As such, we could consider this argument waived and decline to consider it.
See
Bronson v. Swensen
,
Recall that, several months before the government indicted Marquez, Christner died from complications following heart surgery.
We note, again, that we elect to consider the merits of Marquez' argument despite his inadequate opening brief, which does little more than recite the testimony he purports to challenge.
See
Pam
,
In his opening brief, Marquez also argues that "[a]fter nearly every recording played, the prosecutor asked ... Billhymer to tell the jury what it really meant." Aplt. Br. 38. In support, he provides a string cite to various locations in the record where Billhymer made these additional and allegedly impermissible statements.
But we need not consider this broader argument. Marquez forfeited any challenge to the statements listed in his string cite because his counsel failed to object to them at trial.
See
Richison v. Ernest Grp., Inc.
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Jessie Jesus MARQUEZ, Defendant-Appellant.
- Cited By
- 18 cases
- Status
- Published