Expert Testimony Decoding Alleged Drug Code OK; Sufficient Evidence Supported Drug Convictions
US v. Duran, Docket No. 18-1062 (10th Cir. 10/9/19): Mr. Duran was convicted of one count of distributing and possessing cocaine with intent to distribute on March 8, 2017; one count of conspiracy to distribute cocaine and crack cocaine with intent to distribute; and two counts of using a telephone to facilitate a drug crime on March 8 and 11, 2017. He appealed, alleging insufficient evidence to support three of the convictions and arguing that the court abused its discretion in admitting testimony about prior drug transactions and interpretation of some recorded calls.
The court found there was sufficient circumstantial evidence to support the conviction of possession of cocaine on March 8, even though no one saw Mr. Duran with the cocaine. The primary evidence was two phone calls on March 8 between Duran and Jerrell Birch (Jerrell Birch was actually the target of the investigation). In the first, Duran tells Birch that “Unc” is present and (in code interpreted by a cop) Duran wants Birch to convert (“raindrop”) cocaine into crack (“gooey-gooey” – hard to believe grown men talk like this). In the next call, Birch gives Duran directions. Birch and Duran are together for about 1.5 hours, which an officer said was about long enough to make crack. On March 11, Duran tells Birch he still has “hard” (translated as “crack”) from Birch. From all this, the court says the jury could have inferred Duran received cocaine from Unc on March 8, brought the cocaine to a meeting with Birch, spent time with Birch converting the powder cocaine to crack, and received crack cocaine from Birch. This was sufficient circumstantial evidence to support an inference the defendant possessed the cocaine on March 8.
The Court also found sufficient evidence to support the use of a telephone counts because the conversations could allow the jury to reasonably infer that the calls helped Mr. Birch buy cocaine and convert it to crack. The fact that the jury acquitted Mr. Duran of the charge of possessing drugs on March 11 did not require acquittal on the count alleging use of a telephone on March 11.
The trial court did not abuse its discretion in admitting an officer’s testimony about a CI’s controlled buys from Mr. Birch. This was overview testimony that could help the jury understand the content and significance of the conversations between Duran and Birch, and the code words. The testimony did not pose a danger of unfair prejudice because the government did not use the controlled buys to show Mr. Duran possessed or sold cocaine in March 2017 or to impugn his credibility. The court rejected the argument that the testimony was inadmissible hearsay because there was no mention of any out-of-court statement. Mr. Duran contended some of the follow-up questions went beyond the limited purpose of explaining why an investigation was undertaken, but Duran failed to identify any improper questions or informant’s hearsay statements. The argument that the officer lacked personal knowledge of the controlled buys was unpreserved.
The trial court also acted within its discretion in allowing the officer to testify about the meaning of the recorded calls. Regarding some calls, Mr. Duran failed to object and also failed to argue plain error. Even if he had, it was ok for the officer to explain why the investigation turned to Mr. Duran. The officer’s testimony regarding the meaning of code words was proper lay opinion. Other objections were not preserved. Similarly, it was ok to allow expert testimony about drug dealers’ use of code language.
The court found there was sufficient circumstantial evidence to support the conviction of possession of cocaine on March 8, even though no one saw Mr. Duran with the cocaine. The primary evidence was two phone calls on March 8 between Duran and Jerrell Birch (Jerrell Birch was actually the target of the investigation). In the first, Duran tells Birch that “Unc” is present and (in code interpreted by a cop) Duran wants Birch to convert (“raindrop”) cocaine into crack (“gooey-gooey” – hard to believe grown men talk like this). In the next call, Birch gives Duran directions. Birch and Duran are together for about 1.5 hours, which an officer said was about long enough to make crack. On March 11, Duran tells Birch he still has “hard” (translated as “crack”) from Birch. From all this, the court says the jury could have inferred Duran received cocaine from Unc on March 8, brought the cocaine to a meeting with Birch, spent time with Birch converting the powder cocaine to crack, and received crack cocaine from Birch. This was sufficient circumstantial evidence to support an inference the defendant possessed the cocaine on March 8.
The Court also found sufficient evidence to support the use of a telephone counts because the conversations could allow the jury to reasonably infer that the calls helped Mr. Birch buy cocaine and convert it to crack. The fact that the jury acquitted Mr. Duran of the charge of possessing drugs on March 11 did not require acquittal on the count alleging use of a telephone on March 11.
The trial court did not abuse its discretion in admitting an officer’s testimony about a CI’s controlled buys from Mr. Birch. This was overview testimony that could help the jury understand the content and significance of the conversations between Duran and Birch, and the code words. The testimony did not pose a danger of unfair prejudice because the government did not use the controlled buys to show Mr. Duran possessed or sold cocaine in March 2017 or to impugn his credibility. The court rejected the argument that the testimony was inadmissible hearsay because there was no mention of any out-of-court statement. Mr. Duran contended some of the follow-up questions went beyond the limited purpose of explaining why an investigation was undertaken, but Duran failed to identify any improper questions or informant’s hearsay statements. The argument that the officer lacked personal knowledge of the controlled buys was unpreserved.
The trial court also acted within its discretion in allowing the officer to testify about the meaning of the recorded calls. Regarding some calls, Mr. Duran failed to object and also failed to argue plain error. Even if he had, it was ok for the officer to explain why the investigation turned to Mr. Duran. The officer’s testimony regarding the meaning of code words was proper lay opinion. Other objections were not preserved. Similarly, it was ok to allow expert testimony about drug dealers’ use of code language.
posted by Anonymous at 3:20 PM
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