United States v. Marquez, 2018 WL 3744063 (10th Cir. August 7, 2018) (NM): The panel finds that; (1) 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; (2) the district court did not err when it asked a witness one question to clarify a factual matter; and (3) the district court did not abuse its discretion or plainly err when it admitted testimony from government witnesses.
There are two points to consider in this otherwise modest opinion. First, the court finds that although Marquez was never seen with methamphetamine and none was recovered from his possession, the jury still could convict him of possession with intent to distribute. This is so because in recorded calls he was heard saying he still had “a prior batch of low-quality methamphetamine and a new batch of high-quality methamphetamine.” The panel wasn’t troubled by the fact that he “didn’t specifically use the words ‘drugs’ or methamphetamine.’” It said Marquez’s statements were ‘direct evidence’, not circumstantial evidence of possession. Therefore, it was not necessary to link him to “an observed substance that a jury can infer to be a narcotic.”
Second, the panel said a police officer may testify, as a lay witness, about the accused’s role in the conspiracy and ‘code words’ and phrases based on what she heard while listening to recordings of various telephone calls. Regarding the accused’s role, the officer’s testimony was “based on her personal observations.” Apparently, personal observations include listening to recordings. The officer’s testimony about the meaning of code words used in those calls was not expert testimony masquerading as lay testimony because it “was based on what she learned during this investigation.” It is unclear whether the defense made this particular objection but it might be helpful to do so if you are confronted with similar circumstances.
There are two points to consider in this otherwise modest opinion. First, the court finds that although Marquez was never seen with methamphetamine and none was recovered from his possession, the jury still could convict him of possession with intent to distribute. This is so because in recorded calls he was heard saying he still had “a prior batch of low-quality methamphetamine and a new batch of high-quality methamphetamine.” The panel wasn’t troubled by the fact that he “didn’t specifically use the words ‘drugs’ or methamphetamine.’” It said Marquez’s statements were ‘direct evidence’, not circumstantial evidence of possession. Therefore, it was not necessary to link him to “an observed substance that a jury can infer to be a narcotic.”
Second, the panel said a police officer may testify, as a lay witness, about the accused’s role in the conspiracy and ‘code words’ and phrases based on what she heard while listening to recordings of various telephone calls. Regarding the accused’s role, the officer’s testimony was “based on her personal observations.” Apparently, personal observations include listening to recordings. The officer’s testimony about the meaning of code words used in those calls was not expert testimony masquerading as lay testimony because it “was based on what she learned during this investigation.” It is unclear whether the defense made this particular objection but it might be helpful to do so if you are confronted with similar circumstances.
posted by Anonymous at 11:31 AM
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