Appellate Law

CA1: a drug conviction with all the normal trimmings

By S. COTUS

US v. Page, Nos. 06-2006, 06-2007 affirms a conviction for ? possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and conspiracy, id. § 846.?  Immigration and Customs Enforcement (ICE) seems to have been running a rather large and complicated sting operation. Anyway, getting to the objections.

There was cop ?expert? testimony about the m.o. of drug dealers.  The First says it really isn?t expert testimony but rather lay-witness testimony and not subject to normal disclosure to the defense.  The First seems more eager to bend on this issue then to explain why a copy testifying about the methods of criminals is not offering ?expert? testimony.

Don't go away.  There is more below the fold.

The cop also used a bunch of lingo about how he did not know ?at [that] time? what the defendants were doing.  On plain error review, the First says that this isn?t too much of a problem because the government never argued to the jury that they learned more.

The defendant claims that a phone conversation (on a tape) is hearsay. The government claims it is context.  The government wins.  I wonder what isn?t ?context.?

A prosecutorial misconduct argument regarding closing statements is rejected even though the government concedes that the prosecutor shouldn?t have implied that a party?s brother?s ?possession and sale of a gun had rendered him subject to prosecution under federal law, since the jury may have inferred that the prosecutor based this assertion on facts which were not introduced in evidence? The defendant didn?t contemporaneously object, so the First review it on plain error and says that there isn?t that much of a problem. 

Sufficiency challenges fail.  The defendant says that the government didn?t explain away various possible scenarios as to why a defendant was in a car carrying drugs.

The challenge to a denial of a motion to server fails as it wasn?t raised below.

Full post as published by Appellate Law and Practice on March 28, 2008 (boomark / email).