U.S. v. Urena, No. 93-3313

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore TACHA and EBEL, Circuit Judges, and SAM; TACHA
Citation27 F.3d 1487
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rafael A. URENA, Defendant-Appellant.
Decision Date22 June 1994
Docket NumberNo. 93-3313

Page 1487

27 F.3d 1487
UNITED STATES of America, Plaintiff-Appellee,
v.
Rafael A. URENA, Defendant-Appellant.
No. 93-3313.
United States Court of Appeals,
Tenth Circuit.
June 22, 1994.

Page 1489

Kenneth L. Weltz, Curfman, Harris, Rose, Weltz & Smith, Wichita, KS, for defendant-appellant.

Michael G. Christensen (Randall K. Rathbun, U.S. Atty., and Kim M. Fowler, Asst. U.S. Atty., Wichita, KS, with him on the brief), Asst. U.S. Atty., Wichita, KS, for plaintiff-appellee.

Before TACHA and EBEL, Circuit Judges, and SAM, District Judge. *

TACHA, Circuit Judge.

Defendant, Rafael Urena, was convicted of one count of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and one count of travelling in interstate commerce with intent to engage in unlawful activity in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 1952(a)(3). Defendant brings this appeal asserting that the evidence at trial was not sufficient to sustain his convictions, that the trial court improperly admitted testimony as nonhearsay coconspirator statements, and that the trial court erred in not replacing defendant's interpreter as requested by defense counsel. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

I. Sufficiency of the Evidence

Our first task is to determine whether the evidence at trial was sufficient to sustain defendant's conviction. In determining the sufficiency of the evidence, we review the record de novo, United States v. Grimes, 967 F.2d 1468, 1472 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992), and ask only whether, taking the evidence--"both direct and circumstantial, together with the reasonable inferences to be drawn therefrom"--in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt. United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). Considering the testimony of Gwendolyn Davis, the accounts given by Wichita police, and the physical evidence presented at trial, we find evidence to support the following version of events urged by the government.

In January 1993 the defendant, Gwendolyn Davis, Lourdes Collington, and a man identified as "Raymond" met in New York City. Gwendolyn Davis had travelled to the meeting from Wichita, Kansas, while the other participants lived in New York. The meeting concerned a scheme to sell cocaine in Wichita. As part of that scheme, Lourdes Collington and Gwendolyn Davis picked up a quantity of cocaine from defendant and "Raymond" and transported it by bus from New York to Wichita. Defendant also travelled to Wichita and was waiting for Ms. Davis and

Page 1490

Ms. Collington when they arrived there. All, except Ms. Davis, stayed at a house Ms. Davis was renting at 823 S. Belmont in Wichita. Ms. Davis herself stayed elsewhere. When the Wichita police eventually searched 823 S. Belmont on January 21, 1993, they found a substantial amount of cocaine in various locations around the house, a cocaine cutting agent, drug scales and packaging materials, and $750 in cash.

Ms. Davis testified that after the group arrived in Wichita she contacted Wilbert and James Shaw of 1003 S. Topeka about supplying the Shaws with cocaine. She further testified that on at least two occasions, once during the early morning hours of January 21, 1993, and once approximately a week before that, she and defendant drove to 1003 S. Topeka to complete cocaine sales and that defendant entered the house with her and participated in the transactions. The Wichita police had independently staked out 1003 S. Topeka to investigate suspected drug activity. As a result, Detective Stinson of the Wichita Police Department largely confirmed Ms. Davis' account of the visit by defendant and Ms. Davis to 1003 S. Topeka in the early morning of January 21, 1993.

Defendant contends that he did not participate in any drug scheme but went to Wichita only in pursuit of a legitimate job. He contends that he merely was working as a driver for Ms. Davis in her escort business. As our recounting above indicates, however, under the applicable standard of review there is sufficient evidence to sustain his convictions.

II. Admission of Coconspirator Statements

Defendant also contends that the district court improperly denied his motion for judgment of acquittal under Fed.R.Crim.P. 29(a), 834 F.Supp. 1282. He bases this contention on the argument that the district court improperly admitted certain testimony of Gwendolyn Davis as coconspirator statements under Fed.R.Evid. 801(d)(2)(E). This is not a proper basis for a Rule 29(a) motion. The proper basis for a Rule 29(a) motion for judgment of acquittal is a claim of insufficient evidence in light of the elements of the offense charged. See Fed.R.Crim.P. 29(a); United States v. Johnson, 911 F.2d 1394, 1399 (10th Cir.1990), cert. denied, 498 U.S. 1050, 111 S.Ct. 761, 112 L.Ed.2d 781 (1991); United States v. Appawoo, 553 F.2d 1242, 1244 (10th Cir.1977); Lowther v. United States, 455 F.2d 657, 662 (10th Cir.), cert. denied, 409 U.S. 857, 93 S.Ct. 139, 34 L.Ed.2d 102 (1972); see also United States v. Ellison, 684 F.2d 664, 665 (10th Cir.) (pointing out that prosecutorial misconduct is not grounds for action under Rule 29(a)), vacated on other grounds, 722 F.2d 595 (10th Cir.1982). We have already found sufficient evidence to sustain defendant's convictions in Section I above.

Defendant's objection to admission of Ms. Davis' testimony amounts to a simple hearsay objection. Because defendant did in fact raise an independent hearsay objection at trial, we briefly will address the substance of the objection here.

Defendant does not specifically identify the statements in Ms. Davis' wide-ranging testimony to which he objects. We note initially that most of the testimony was admissible as Ms. Davis' own observations or as involving statements of defendant himself which are admissible under Fed.R.Evid. 801(d)(2)(A). Only a portion of the testimony consisted of coconspirator statements which depend upon Fed.R.Evid. 801(d)(2)(E) for admissibility.

Pursuant to Rule 801(d)(2)(E), we have established a three-part test for admission of coconspirator statements as nonhearsay. "The court must determine that (1) by a preponderance of the evidence, a conspiracy existed, (2) the declarant and the defendant were both members of the conspiracy, and (3) the statements were made in the course of and in furtherance of the conspiracy." Johnson, 911 F.2d at 1403. We review the trial court's findings of fact with respect to these points only for clear error. United States v. Caro, 965 F.2d 1548, 1557 (10th Cir.1992).

Defendant argues that the procedure followed by...

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  • U.S. v. Williamson, Nos. 93-3389
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 14, 1995
    ...most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt," United States v. Urena, 27 F.3d 1487, 1489 (10th Cir.) (quoting United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 19......
  • U.S. v. Lang, No. 02-4075.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 21, 2004
    ...were interdependent." Id. "In determining the sufficiency of the evidence, we review the record de novo." United States v. Urena, 27 F.3d 1487, 1489 (10th Cir.1994), cert. denied, 513 U.S. 977, 115 S.Ct. 455, 130 L.Ed.2d 364 Of the four elements of conspiracy, Mr. Lang claims only that insu......
  • United States v. Deleon, No. CR 15–4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 7, 2018
    ...the presence of the jury to determine by a preponderance of the evidence the existence of a predicate conspiracy." United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994). A defendant does not possess a right to a pretrial hearing on admissibility of coconspirators statements; however, ......
  • United States v. DeLeon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 23, 2019
    ...the presence of the jury to determine by a preponderance of the evidence the existence of a predicate conspiracy." United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994). A defendant does not possess a right to a pretrial hearing on admissibility of coconspirators statements; however, ......
  • Request a trial to view additional results
100 cases
  • U.S. v. Williamson, Nos. 93-3389
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 14, 1995
    ...most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt," United States v. Urena, 27 F.3d 1487, 1489 (10th Cir.) (quoting United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 19......
  • U.S. v. Lang, No. 02-4075.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 21, 2004
    ...were interdependent." Id. "In determining the sufficiency of the evidence, we review the record de novo." United States v. Urena, 27 F.3d 1487, 1489 (10th Cir.1994), cert. denied, 513 U.S. 977, 115 S.Ct. 455, 130 L.Ed.2d 364 Of the four elements of conspiracy, Mr. Lang claims only that insu......
  • United States v. Deleon, No. CR 15–4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 7, 2018
    ...the presence of the jury to determine by a preponderance of the evidence the existence of a predicate conspiracy." United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994). A defendant does not possess a right to a pretrial hearing on admissibility of coconspirators statements; however, ......
  • United States v. DeLeon, No. CR 15-4268 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 23, 2019
    ...the presence of the jury to determine by a preponderance of the evidence the existence of a predicate conspiracy." United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994). A defendant does not possess a right to a pretrial hearing on admissibility of coconspirators statements; however, ......
  • Request a trial to view additional results

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