Drug Convictions Affirmed

U.S. v. Atencio, 2006 WL 148272 (1/20/06) - The 10th strongly suggests that to trigger the CCE life sentence based on quantity of drugs involved [e.g. 30,000 kilograms of marijuana, 150 kilograms of cocaine], the government must prove a particular charged offense, [as opposed to the enterprise as a whole, [as the government claimed], or the series of violations charged], involved the requisite quantity. But, the 10th decided it didn't have to decide that question because the defendants failed to meet the prejudice portion of the plain error test. The evidence established the defendants maintained a residence that was involved in distributing more than a sufficient amount of cocaine and marijuana. Despite the fact that first-hand knowledge testimony did not prove the requisite amounts of drugs, the evidence was sufficient to prove the requisite quantities based on the number of courier trips, drug ledgers found at the residence and expert testimony explaining how much cocaine and marijuana the ledgers were talking about. There was also sufficient evidence that a defendant supervised five or more persons, although she was "primarily in charge of the money." The admission of a videotaped deposition of a government witness, while perhaps a Confrontation Clause error because the government did not make a good faith effort to obtain the witness' live testimony, was harmless beyond a reasonable doubt because there was plenty of quantity evidence without that witness. The d.ct. did not abuse its discretion to deny a mistrial motion due to the prosecutor's reference to the pretrial detention of one of the defendants. The comment was isolated, the d.ct. gave a general instruction that attorneys' comments were not evidence and the prosecutor was responding to defense counsel's argument.

Double jeopardy was violated when the defendants were convicted of both the lesser-included offense of conspiracy and the CCE. They only have to serve one life without parole sentence rather than two. Yippee!!!!

U.S. v. Hebah, 2006 WL 148275 (1/20/06)(unpub'd) - A case to keep in mind when attempting to present an expert on false confessions. The government may very well trot this case before the court, even though it will doubtless be distinguishable. In this case, the 10th held the d.ct. did not abuse its discretion when it refused to allow such an expert to testify. The defense wanted the expert to testify about the defendant's proneness to give false confessions because of his overly compliant nature. The expert was not as well credentialed and was not as thorough as one might hope. The district court also relied on the notion that the studies used by the expert were done in Great Britain and Iceland where Miranda did not apply.

U.S. v. Briseno, 2006 WL 122448 (1/18/06)(unpub'd) - Apprendi, et al, did not change the fact that to increase the maximum sentence the government need only prove the type and quantity of the drug involved. It does not have to prove the defendant knew the type and quantity of drug involved.