United States v. Duran

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 25, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 06-4003
(D.C. No. 1:03-CR-139-DAK)
JAM ES D URAN, also known as (D. Utah)
James Joseph Duran,

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.

Defendant James D uran was convicted by a jury of distribution of fifty

grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1),

possession of a firearm and ammunition by a convicted felon in violation of

18 U.S.C. § 922(g)(1), possession of a firearm and ammunition following a

domestic violence conviction in violation of 18 U.S.C. § 922(g)(9), and

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
possession of methamphetamine with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1).

Defendant’s appointed counsel filed an opening brief challenging the

sufficiency of the evidence for defendant’s conviction for distribution of fifty or

more grams of methamphetamine and arguing that defendant’s due process rights

were violated because the Government failed to provide Jencks Act material from

one of its witnesses, as required by 18 U.S.C. § 3500. Defendant then filed a

request seeking permission to file a pro se supplemental brief. In his

supplemental brief, defendant raises six additional claims of error. W e exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM .

I. Sufficiency of the Evidence

W e review challenges to the sufficiency of the evidence de novo. United

States v. M uessig, 427 F.3d 856, 860-61 (10th Cir. 2005), cert. denied, 126 S. Ct.

1446 (2006). W e will affirm a conviction “if, viewing the evidence in the light

most favorable to the government and drawing all reasonable inferences

therefrom, a reasonable jury could have found the defendant guilty beyond a

reasonable doubt.” 1 Id. at 861. Defendant contends that the evidence introduced

1
Defendant failed to move for judgment of acquittal pursuant to
Fed. R. Crim. P. 29, which would generally mean that this court would review
his claim for plain error. United States v. Duran, 133 F.3d 1324, 1335 n.9
(10th Cir. 1998). W e have noted, however, that “review under the plain error
standard . . . and a review of sufficiency of the evidence usually amount to largely
the same exercise.” Id. W e would reach the same conclusion under either
standard.

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at trial was insufficient to support his conviction for distributing fifty or more

grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). “Pursuant to

the plain language of § 841(a)(1), the essential elements of a prim a facie case of

distribution of a controlled substance are: (1) knowing or intentional;

(2) distribution; (3) of a controlled substance.” United States v. Santistevan,

39 F.3d 250, 255 (10th Cir. 1994). W e conclude, as set forth below , that there

was sufficient evidence to support defendant’s conviction.

Officer Kyle Jeffries testified that he engaged an informant, Brian, to

purchase two ounces of methamphetamine from Brian’s supplier, Alan W ade

Clapp. Brian was wearing a wiretap and Officer Jeffries heard Clapp tell Brian

that he did not have the drugs and that he needed to go to Ogden, Utah, to get

more methamphetamine from another person. Clapp told Brian he would call him

when he returned from Ogden and they would complete the purchase. Officer

Jeffries followed Clapp to Ogden. After a few brief stops along the way at his

lawyer’s office, a W endy’s fast food restaurant, and a convenience store, Clapp

eventually arrived at defendant’s house. Another car arrived at the same time as

Clapp’s car.

Clapp testified at trial and confirmed the officer’s testimony, including his

initial meeting with Brian, his trip to Ogden to purchase methamphetamine from

defendant, and his stops on the way to defendant’s house. Clapp also detailed the

drug transaction, including waiting in defendant’s living room while defendant

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went to another room to get the drugs, watching defendant weigh out the

methamphetamine on a scale, then transferring the drugs from a gallon-size

Ziploc bag into small baggies and back into the large Ziploc bag. Defendant then

gave the Ziploc bag containing the methamphetamine to Clapp and also provided

Clapp with a Crown Royale bag in which Clapp placed the large Ziploc bag filled

with methamphetamine. Clapp then paid defendant and left the house. Clapp also

testified about his actions after he departed defendant’s house, which was

consistent with the officer’s testimony, including stopping a half block from

defendant’s house to pull the Ziploc bag out of his pants and hide it under the

hood of his car, being apprehended by the police, and eventually identifying

defendant as the source of the methamphetamine. Finally, Clapp identified

defendant in court as the person from whom he purchased the methamphetamine.

Ignoring the detailed testimony of Clapp, defendant contends that the jury

had to speculate and stack inference upon inference in order to reach a guilty

verdict. Defendant’s theory is that someone else sold the methamphetamine to

Clapp. He points out that there was no evidence linking him to the car that pulled

up next to Clapp’s car outside of his house; there was no fingerprint testing done

on the large Ziploc bag; there was no explanation as to how two M exican men,

who were stopped after leaving his house, came to possess $80 in marked money

that had been given to Clapp by Brian; and there was no drug paraphernalia or

money found at his house when the search was conducted.

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 This case is similar to United States v. Johnson, 130 F.3d 1420, 1429

(10th Cir. 1997), where the defendant was charged with distributing cocaine and

defense counsel attempted to raise doubts concerning the identity of the person

who sold the cocaine to the informant. The informant testified at trial that she

and another person went to the defendant’s house and negotiated the purchase of

$40 worth of cocaine from the defendant. Id. W e noted that law enforcement

officers corroborated the informant’s testimony and verified that the substances

purchased were cocaine. Id. W e concluded that there was sufficient evidence to

uphold the conviction, explaining “given [the informant’s] in-court identification

of [the defendant] as the person she dealt with, the jury had an evidentiary basis

for concluding [the defendant] was the person who sold the cocaine to [the

informant].” Id.

Like the Johnson case, Clapp’s testimony was substantially corroborated by

a police officer, defendant stipulated that the substance was methamphetamine,

and Clapp made an in-court identification of defendant as the person who sold

him the methamphetamine. Although there may have been conflicting evidence

introduced at trial, in conducting our review, “we do not weigh conflicting

evidence nor consider the credibility of witnesses. Instead, we must simply

determine whether [the] evidence, if believed would establish each element of the

crime.” United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004)

(citation and internal quotation marks omitted). The Government presented

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sufficient evidence for the jury to find beyond a reasonable doubt that the

defendant knowingly or intentionally distributed a controlled substance in

violation of 21 U.S.C. § 841(a)(1).

II. Jencks Act Violation

Defendant contends that the Government violated the Jencks Act, and thus

his due process rights, by failing to disclose to trial counsel alleged pre-trial

debriefing statements given by Clapp to authorities concerning defendant.

Although the Government points out that defendant did not make a timely request

for Jencks Act material after Clapp’s testimony, as required by the statute, the

Government conceded that it has an open-file policy and as part of that policy it

should have disclosed all Jencks Act material during discovery. The Government

did produce to counsel Clapp’s grand jury testimony as required by the Jencks Act.

The Government contends that it does not possess any additional Jencks Act

material.

Once a defendant believes that there is discoverable Jencks Act material that

was not produced, he must make an affirmative request to the trial court for the

production of those statements. See United States v. Smith, 984 F.2d 1084, 1086

(10th Cir. 1993). In Smith, this court agreed with the Ninth Circuit that “‘the

defendant must plainly tender to the Court the question of the producibility of the

document at a time when it is possible for the Court to order it produced, or to

make an appropriate inquiry.’” Id. (quoting Ogden v. United States, 303 F.2d 724,

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733 (9th Cir. 1962)). The defendant’s demand must also be “‘sufficiently precise

to identify the statements requested.’” Id. (quoting United States v. Wallace,

848 F.2d 1464, 1471 (9th Cir. 1988)). Although defendant now argues on appeal

that there are Jencks Act statements that were not produced, he did not make any

showing in the district court that such statements exist and he does not identify

any evidence in the record before us to support a conclusion that those statements

exist. Defendant has not demonstrated that there was a Jencks Act violation.

III. Defendant’s Supplemental Pro Se Brief

Defendant’s supplemental pro se brief raises the following additional issues:

(1) the judgment is void for failure to comply with jurisdictional and constitutional

mandates; (2) the Government failed to invoke 18 U.S.C. § 2 and 18 U.S.C. § 846

in relation to the underlying offense charged under 21 U.S.C. § 841(a)(1);

(3) the lack of adversarial testing at the trial level deprived defendant of his

Sixth Amendment right to hold the Government to its burden of proof; (4) the

Government’s failure to prove cession of legislative and territorial jurisdiction by

the union state of Utah over the location of the offenses renders the judgment

void; (5) the probable cause determination relative to the search warrant was in

error; and (6) the failure of the warrant and affidavit for the search w arrant to list

the firearms and ammunition seized constituted an unconstitutional seizure of

those items. Because defendant did not raise any of these issues in the district

court, our review is limited to plain error. United States v. Burbage, 365 F.3d

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1174, 1180 (10th Cir. 2004). “Plain error occurs w hen there is (1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

omitted). Defendant has not shown plain error with respect to any of these six

issues.

IV. Conclusion

Defendant’s motion to compel is DENIED. Defendant’s motion to file a

supplemental pro se brief is GRANTED. W e AFFIRM defendant’s convictions.

Entered for the Court

David M . Ebel
Circuit Judge

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