United States v. Marquez

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 7, 2018

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-2028

JESSIE JESUS MARQUEZ,

Defendant - Appellant.
_________________________________

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 2:13-CR-03367-RB-2)
_________________________________

James L. Hankins, Edmond, Oklahoma, for Defendant-Appellant.

Sarah M. Davenport, Assistant United States Attorney (James D. Tierney, Acting United
States Attorney, with her on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.
_________________________________

Before TYMKOVICH, Chief Judge, MORITZ and EID, Circuit Judges.
_________________________________

MORITZ, Circuit Judge.
_________________________________

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 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

2
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, 853 F.3d

1101, 1106 (10th Cir. 2017), aff’d on other grounds, 138 S. Ct. 1491 (2018).

1
Christner himself wasn’t charged because he died of complications from
heart surgery a few months before the government filed the indictment.
3
 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

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

4
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.

5
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, 853 F.3d at 1106.

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 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.” Id. at 1107. Additionally, to establish the scope of the charged

conspiracy, the government had to prove that it involved “500 grams and more” of

methamphetamine. R. vol. 1, 2. Marquez challenges all but the first of these

elements, and his overarching argument is that the government failed to prove that he

participated in a broad, 18-person conspiracy involving over 500 grams of

methamphetamine.

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, 853 F.3d at 1107. But being separate

6
from the remainder of the conspiracy isn’t determinative: “A conspirator ‘need not

know of the existence or identity of the other members of the conspiracy or the full

extent of the conspiracy.’” United States v. Evans, 970 F.2d 663, 669 (10th Cir.

1992) (quoting United States v. Metro. Enters., Inc., 728 F.2d 444, 451 (10th Cir.

1984)). Instead, a conspirator must simply be generally aware of the conspiracy’s

scope and objective. Id. at 670.

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

7
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, 853 F.3d at

1107.

This same evidence supports the conclusion that Marquez “knowingly and

voluntarily participated” in this conspiracy. Id. He both helped Christner find a new

supplier and distributed methamphetamine that Christner provided. In short, this

evidence showed that Marquez played at least “a minor role in the conspiracy

[sufficient] to make him a co[]conspirator.” United States v. Pickel, 863 F.3d 1240,

1252 (10th Cir. 2017).

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.’” Id. (alteration in

original) (quoting United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009)).

To determine whether the government presented sufficient evidence of this element,

we ask whether Marquez’ actions “facilitated the endeavors of other alleged

co[]conspirators or facilitated the venture as a whole.” Id. at 1252–53 (quoting

United States v. Acosta-Gallardo, 656 F.3d 1109, 1124 (10th Cir. 2011)).

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

8
conspiracy. See id. at 1253 (“[A] single act can be sufficient to demonstrate

interdependence.” (quoting Caldwell, 589 F.3d at 1329)); Evans, 970 F.2d at 671

(“What is needed is proof that [the conspirators] intended to act together for their

shared mutual benefit within the scope of the conspiracy charged.”). The government

bolstered this conclusion by presenting intercepted calls that Christner made to four

of his other distributors immediately after learning that Marquez had reached a deal

with the supplier for two pounds of methamphetamine a week. In these calls,

Christner told his distributors that he obtained some “groceries,” which investigators

testified meant methamphetamine. Supp. R. 82. He also told his distributors that he

would be getting more methamphetamine in the future: “I think I found uh, uh,

somebody with those groceries all the time.” Id. at 83. This was sufficient evidence

from which the jury could conclude that Marquez’ actions “were necessary or

advantageous to the success of the activities of co[]conspirators,” satisfying the

interdependence element of conspiracy. Pickel, 863 F.3d at 1253 (quoting United

States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990), abrogated on other grounds by

United States v. Gaudin, 515 U.S. 506 (1995)).

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, 533 F.3d 1231,

1237 (10th Cir. 2008) (“A variance arises when an indictment charges a single

conspiracy but the evidence presented at trial proves only the existence of multiple

9
conspiracies.”). But as we have outlined, the government’s evidence was sufficient

for a jury to conclude that Marquez knew the conspiracy’s essential objective and

knowingly and voluntarily participated in it because he helped Christner find a

supplier of two pounds, or 908 grams, of methamphetamine per week. That

conclusion dooms Marquez’ variance argument. See United States v. Griffin, 493

F.3d 856, 862 (7th Cir. 2007) (“We treat a conspiracy variance claim as an attack on

the sufficiency of the evidence supporting the jury’s finding that each defendant was

a member of the same conspiracy.”).

Thus, we reject Marquez’ contention that a variance occurred in this case. See

United States v. Fishman, 645 F.3d 1175, 1191 (10th Cir. 2011) (finding no variance

because “record amply support[ed] the jury’s determination that there was only a

single conspiracy”). And because we find no variance, “we do not reach the second

question of whether [the] variance substantially prejudiced” Marquez. United States

v. Serrato, 742 F.3d 461, 468 (10th Cir. 2014).

C. Possession with Intent to Distribute

Marquez next argues that the government’s evidence was insufficient to prove

that he possessed methamphetamine 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.

10
 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.” Id.

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, 473 F.3d 1295 (10th Cir. 2007), and United States v.

Baggett, 890 F.2d 1095 (10th Cir. 1989); and one Second Circuit case, United States

v. Bryce, 208 F.3d 346 (2d Cir. 1999). He then nakedly asserts, in an argument

section spanning just over one page, that these authorities stand for the proposition

that “phone calls indicating meth[amphetamine] possession, standing alone” are

never sufficient to prove possession. Aplt. Br. 26.

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, 473 F.3d at 1309; Baggett, 890 F.2d at 1096–97. But Marquez overstates the

holdings of those cases, especially in light of critical factual distinctions. For

instance, the phone calls in both Hall and Baggett involved individuals arranging to

11
buy drugs. See Hall, 473 F.3d at 1307; Baggett, 890 F.2d at 1096. Standing alone,

those calls established only that the defendants attempted to purchase drugs, not that

they ever actually possessed them. As a result, the calls weren’t sufficient, on their

own, to establish a possession crime. See Hall, 473 F.3d at 1309; Baggett, 890 F.2d

at 1096–97. Here, the call didn’t show Marquez arranging to buy methamphetamine

from Christner—on the contrary, Marquez specifically discussed distributing the

methamphetamine he already possessed.

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.” 208 F.3d at 353. The Second Circuit

determined that the defendant’s statements, standing alone, weren’t sufficient to

support a possession conviction because they “raise[d] questions as to whether or not

[the defendant] actually possessed or distributed cocaine on the relevant dates.” Id. at

356. Specifically, although the defendant appeared to agree to sell some drugs that he

possessed, he then (1) became unavailable to the buyer, (2) backtracked on the

amount he possessed, (3) only reluctantly agreed to make the sale, and (4) never met

with the buyer as planned. See id. In light of such equivocal statements and behavior,

the Second Circuit concluded that a rational jury could not have found beyond a

reasonable doubt that the defendant possessed cocaine on the date alleged. See id.

In contrast, Marquez’ statements here were unequivocal. He plainly told

Christner that he possessed two batches of methamphetamine and that he had been

12
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.” 890 F.2d at 1097.

But in this case, the government did present “direct evidence of drug

possession.” Id. “Direct evidence is evidence [that], if believed, resolves a matter in

issue” without further inference. United States v. Cardinas Garcia, 596 F.3d 788,

796–97 (10th Cir. 2010) (quoting 16 McCormick on Evidence § 185 (6th ed. 2006));

see also Evidence, Black’s Law Dictionary (10th ed. 2014) (defining “direct

evidence” as “[e]vidence that is based on personal knowledge or observation and

that, if true, proves a fact without inference or presumption”). If the jury believed

Marquez’ statements that he “still” had the low-quality methamphetamine and

“ha[d]n’t even got[ten] to” the high-quality methamphetamine, no further inference

13
was necessary to conclude that he possessed methamphetamine. Supp. R. 25; see also

United States v. Levario, 877 F.2d 1483, 1485 (10th Cir. 1989) (describing

defendant’s statement about what he was transporting—“I didn’t think it was that

[cocaine], I thought it would be marijuana”—as “direct evidence” of drug possession

(alteration in original)), overruled on other grounds by Gozlon-Peretz v. United

States, 498 U.S. 395 (1991). Thus, Marquez’ statements on the intercepted call,

viewed in the light most favorable to the government, were sufficient for a jury to

conclude beyond a reasonable doubt that on March 16, 2013, he possessed

methamphetamine with intent to distribute.

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,

805 F.3d 908, 916 (10th Cir. 2015). To obtain relief under the plain-error standard,

Marquez must show (1) that error occurred, (2) that the error is plain, (3) that the

error affected his substantial rights, and (4) that the error “seriously affect[ed] the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Bustamante-Conchas, 850 F.3d 1130, 1137 (10th Cir. 2017) (en banc) (quoting

United States v. Mike, 632 F.3d 686, 691–92 (10th Cir. 2011)). As we explain,

Marquez cannot show that the district court erred.

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

14
is . . . beyond dispute,” United States v. Albers, 93 F.3d 1469, 1485 (10th Cir. 1996);

see also Fed. R. Evid. 614(b) (“The [district] court may examine a witness regardless

of who calls the witness.”). Here, the district court asked Billhymer one question.

Billhymer testified, when discussing one of the intercepted calls, that Marquez’

reference to “four for 32,” was a reference to purchasing four ounces of

methamphetamine for $3,200 as opposed to four pounds for $32,000. R. vol. 3, 182.

The district court asked her how she reached that conclusion, in light of earlier

testimony that Christner previously purchased one pound for $8,000, such that four

pounds would have been $32,000. In response, Billhymer admitted that the reference

to “four for 32” could have been to four pounds but explained that the context

indicated it was a reference to four ounces; Christner, who usually dealt in pounds,

hadn’t seemed satisfied with the quantity.

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, 697 F.2d 262, 264–66 (8th

Cir. 1983) (finding that judge’s questioning constituted reversible error because court

essentially took over cross-examination for government). For example, when

questioning witnesses, judges should “take care not to create the appearance that

[they are] less than totally impartial.” Albers, 93 F.3d at 1485; see also Fed. R. Evid.

15
614(b) advisory committee’s note to 1972 proposed rules (noting that district court

can’t “abandon[] [its] proper role and assume[] that of advocate”).

But contrary to Marquez’ assertion, the district court’s question here didn’t

create the appearance of impartiality; it merely clarified a factual matter. See Albers,

93 F.3d at 1486 (“We have noted the propriety of questioning by the court to clarify

testimony . . . .”); cf. United States v. Campino, 890 F.2d 588, 592 (2d Cir. 1989)

(finding no error in district court’s suggestion that government call another witness

because “[i]t is the very function of the trial court to establish the facts as clearly and

completely as possible”; explaining that “[b]y seeking additional evidence . . . the

court in no way displayed a predisposition towards the government’s position”). In

fact, when Marquez’ counsel began his cross-examination of Billhymer immediately

following the district court’s question, he noted: “That’s actually one of the things I

was going to ask you, too.” R. vol. 3, 183.

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, 289 U.S. 466, 468,

472 (1933) (reversing conviction because district court told jury that he believed

witness lied); United States v. Ottaviano, 738 F.3d 586, 595–98 (3d Cir. 2013)

(finding error in extensive and aggressive questioning by court but declining to

reverse because the questions occupied a fraction of record and the evidence against

defendant was overwhelming); United States v. Godwin, 272 F.3d 659, 674–75, 679–

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81 (4th Cir. 2001) (assuming district court erred by extensively cross-examining

testifying defendant, expressing doubt about defendant’s veracity, and rehabilitating

government witnesses but finding no prejudice); United States v. Beaty, 722 F.2d

1090, 1095–96 (3d Cir. 1983) (reversing one conviction because district court’s

“overzealous examination” of key defense witness, including questions unrelated to

crimes charged or substance of witness’ testimony, gave impression that judge didn’t

believe witness).

Here, the district court’s question did not advocate for the government or

create the impression of impartiality. 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, 93 F.3d at 1486. Thus, we conclude that the

district court did not err. And because we find no error, we need not consider the

remaining steps of plain-error review. See United States v. Fabiano, 169 F.3d 1299,

1305 (10th Cir. 1999).

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, 793

2
Marquez’ opening brief includes a single sentence on this issue and fails to
explain why Billhymer’s testimony violated the Confrontation Clause. Nor does
17
F.3d 1194, 1211 (10th Cir. 2015).

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?” Id.

Billhymer said, “Yes.” Id. And then the prosecutor moved on. Later, on cross-

examination, Marquez’ counsel elicited from Billhymer that Christner never

implicated or named Marquez during the interview.

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, 541 U.S. 36, 42 (2004). And the primary concern of the

Confrontation Clause is “testimonial hearsay,” which includes out-of-court

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, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to
consider arguments that . . . are inadequately presented[] in an appellant’s opening
brief.”). Nevertheless, we elect to consider the argument on the merits. See United
States v. Pam, 867 F.3d 1191, 1200 n.7 (10th Cir. 2017) (noting that appellate court
has discretion to consider merits of inadequately briefed argument).
3
Recall that, several months before the government indicted Marquez,
Christner died from complications following heart surgery.
18
statements, offered for their truth, made during a police interrogation. Crawford, 541

U.S. at 53. Here, the government conceded at oral argument that Billhymer’s

statement involved testimonial hearsay and violated the Confrontation Clause.

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, 782 F.3d 554, 560–61 (10th Cir. 2015) (quoting United States v. Becker,

230 F.3d 1224, 1230 (10th Cir. 2000)).

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, 481 F.3d 1274, 1278 (10th Cir. 2007) (finding Confrontation Clause

violation harmless in part because the testimony “was relatively unimportant to the

government’s case” and “[t]he government provided ample evidence to support the

conspiracy charge”). The government presented 21 intercepted phone calls and 11

text messages involving Marquez—calls and texts that, in context, show Marquez

participating in conversations with Christner and others about buying and selling

methamphetamine. Thus, as Marquez’ counsel argued to the jury in closing and

argues elsewhere in this appeal, the case against Marquez turned largely on whether

the jury believed it was Marquez’ voice on the calls. And Billhymer’s brief

description of the interview with Christner didn’t identify either Marquez or the

19
substance of any of the intercepted calls. Further, Marquez’ counsel elicited on cross-

examination that Christner didn’t name Marquez as a coconspirator.

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, 481 F.3d at 1278 (noting as

part of harmlessness inquiry that neither party mentioned improper testimony in

closing). In sum, any prejudicial effect created by Billhymer’s testimony that

Christner “confirm[ed] generally” the details of her investigation was insignificant

when compared to the overwhelming evidence against Marquez as reflected in the

intercepted calls. R. vol. 3, 243. Thus, any error in the district court’s decision to

admit that testimony was harmless beyond a reasonable doubt. See Edwards, 782

F.3d at 560–61.

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 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,

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, 736 F.3d 921, 929

(10th Cir. 2013). A district court abuses its discretion when its decision is “arbitrary,

capricious, whimsical[,] or manifestly unreasonable.” United States v. Banks, 761

F.3d 1163, 1197 (10th Cir. 2014).

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, 736 F.3d at 931 n.2 (quoting

4
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, 867 F.3d at 1200 n.7.
21
United States v. Meises, 645 F.3d 5, 16 (1st Cir. 2011)).

Relying on United States v. Williams, 827 F.3d 1134 (D.C. Cir. 2016),

Marquez asserts that because Billhymer had no personal knowledge of Marquez’ role

in the conspiracy, she couldn’t testify about that role as a lay opinion witness. See

Fed. R. Evid. 701(a) advisory committee’s notes to 1972 proposed rules (noting “the

familiar requirement of first-hand knowledge or observation”). In Williams, the D.C.

Circuit concluded that certain lay opinion testimony wasn’t proper because the

witness didn’t disclose the “objective bases” for his opinions. See 827 F.3d at 1159.

We’re not bound by the D.C. Circuit’s objective-basis rule. See Jordan v.

Sosa, 654 F.3d 1012, 1034 (10th Cir. 2011) (noting that this court isn’t “bound by

opinions handed down in other circuits” (quoting Hill v. Kan. Gas Serv. Co., 323

F.3d 858, 869 (10th Cir. 2003))). And even assuming we agreed to follow that rule

here, Marquez wouldn’t be entitled to relief. As the government points out, Billhymer

had an objective basis for her conclusions in this case: she testified based on her own

perception of Marquez’ role, which she gleaned from personally listening to

“[h]undreds of hours of [intercepted] calls.” R. vol. 3, 38; cf. Brooks, 736 F.3d at 934

(noting that “witness[ing] a controlled drug purchase” would establish an officer’s

“firsthand knowledge”).

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

22
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

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, 736 F.3d at 929–30.

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

5
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., 634 F.3d 1123, 1127–28 (10th Cir.
2011). And although we can review forfeited arguments for plain error, Marquez
“fail[ed] to argue for plain error” on appeal. Id. at 1131. He therefore waived any
argument that admitting these statements satisfied this standard. See McKissick v.
Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010) (concluding that if appellant forfeits an
argument and then “fail[s] to explain in [his or] her opening appellate brief . . . how
they survive the plain[-]error standard,” appellant thereby “waives the argument[] in
this court”).
23
personal knowledge and was therefore inadmissible under Rule 701. See United

States v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011) (noting that someone “may

testify as a lay witness only if [her] opinions or inferences do not require any

specialized knowledge and could be reached by any ordinary person” (emphasis

added) (quoting Lifewise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir.

2004))). But as just explained, Billhymer’s testimony about Marquez’ role in the

conspiracy was based on the personal knowledge she acquired from listening to

“[h]undreds of hours of calls” while overseeing this investigation. R. vol. 3, 38. It’s

likewise reasonable to conclude that while listening to these calls, Billhymer became

personally familiar with the meaning of the coded language that Marquez and

Christner used to discuss methamphetamine.

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, 248 F.3d 434, 441 (5th Cir. 2001) (noting that law-

enforcement officer could testify as nonexpert about meaning of code words based on

personal perception developed from his “extensive participation in the investigation

of [the] conspiracy, including . . . the monitoring and translating of intercepted

telephone conversations”). Moreover, even if we were to assume that the district

court erred in admitting some part of Billhymer’s testimony, we would decline to

find that the error was plain. To be plain, an error must violate the well-settled law of

the Supreme Court or this circuit. See Brooks, 736 F.3d at 930. And Marquez hasn’t

24
pointed us to any Supreme Court or Tenth Circuit authority finding error in testimony

like this. Thus, we decline to find that the district court erred, plainly or otherwise, in

admitting Billhymer’s testimony about the meaning of the code words in this case.

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 id. at 929–

30.

Like Billhymer, Becknell testified about the meaning of certain code words in

drug 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, 70 F.3d 1167, 1171 (10th Cir. 1995) (“This [c]ourt has repeatedly

held that in narcotics cases, expert testimony can assist the jury in understanding

transactions and terminology.”).

Relying on United States v. Garcia, 752 F.3d 382 (4th Cir. 2014), Marquez

complains that Becknell’s testimony was both generalized from his work as a law-

enforcement officer with experience investigating methamphetamine crimes and

25
specifically derived from his supervision of Billhymer’s investigation in this

particular case. In Garcia, the Fourth Circuit reversed the defendant’s convictions

because an expert who testified about the meaning of coded language conflated that

expert testimony with fact testimony based on her knowledge of the case. See id. at

391–92.

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, 736 F.3d at 930. Garcia, a Fourth Circuit case,

doesn’t establish the well-settled law of this circuit. In fact, we’ve expressly

approved the admission of similar testimony. See Quintana, 70 F.3d at 1171 (finding

district court didn’t abuse its discretion when it admitted expert testimony about “the

meaning of the conversations recorded on the wiretap tapes”). Thus, the district court

did not plainly err in admitting Becknell’s testimony.

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, 736 F.3d at 929–30.

Overview testimony is related to opinion testimony, but it’s “a broader

category of evidence.” Id. at 930. It’s generally offered at the beginning of a trial,

“before there has been any evidence admitted for the witness to summarize.” Id.

26
(quoting United States v. Griffin, 324 F.3d 330, 349 (5th Cir. 2003)). Overview

testimony usually comes from a government witness who previews the government’s

case by explaining how an investigation began, which law-enforcement agencies

were involved, and which investigative techniques they used. See id. We generally

permit overview testimony, but it is subject to abuse, such as when an overview

witness testifies based on hearsay rather than on personal knowledge or when an

overview witness offers an opinion on the defendant’s guilt. Id.

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, 645 F.3d 5; United States v. Flores-de-Jesús, 569 F.3d 8 (1st Cir. 2009);

United States v. Casas, 356 F.3d 104 (1st Cir. 2004).

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, 748 F.3d 984, 1000 (10th Cir. 2014) (rejecting

Confrontation Clause challenge because appellants “generally describe[d]” the

witness’ testimony but didn’t “identify the parts that involved the recitation of

testimonial hearsay”). As such, we could treat this issue as inadequately briefed and

decline to consider it. See Fed. R. App. P. 28(a)(8)(A) (requiring appellant’s brief to

contain “appellant’s contentions and the reasons for them, with citations to the . . .

27
parts of the record on which the appellant relies”); United States v. Gutierrez de

Lopez, 761 F.3d 1123, 1137 n.16 (10th Cir. 2014) (finding undeveloped argument

waived).

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, 736 F.3d at 930 (“[F]or an error to be [plain

and] contrary to well-settled law, either the Supreme Court or this court must have

addressed the issue.” (quoting Thornburgh, 645 F.3d at 1208)). In Brooks, we

referenced these three First Circuit cases, but we held that the defendant couldn’t

show plain error under Tenth Circuit caselaw because “none of our prior cases have

condemned unobjected-to overview testimony to the extent defendants now request.”

Id. at 930–32, 931 n.2. Similarly, here, any error in admitting Billhymer’s testimony

wasn’t plain under our prior caselaw. Thus, we reject Marquez’ generalized assertion

that Becknell’s or Billhymer’s testimony constituted improper overview testimony.

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

28
or plainly err in admitting testimony from government agents. Accordingly, we

affirm.

29