Evidentiary Arguments Rejected in Upholding Cocaine Convictions

U.S. v. Mendoza, 2007 WL 1575985 (6/1/07)(unpub'd) - Despite the brilliant, dogged efforts of two AFPDs, the 10th upholds a defendant's cocaine convictions. DEA agent West's expert testimony regarding the drug world did not amount to testimony on the state of mind of the defendant in violation of Fed. R. Evid. 704(b), even though his testimony inexorably lead to the conclusion he believed the defendant was a seller, not a user, as the defendant contended. While agreeing with the 2d Circuit that a serious risk of prejudice is associated with the use of a case agent as an expert as well as a fact witness, the 10th declined to adopt a per se rule excluding such testimony. The 10th will leave it to the d.ct. to make the necessary 403 determinations. Anyway, any error was harmless.

The d.ct. did not abuse its discretion in refusing to order disclosure of two confidential informants ("CI"). It was pure speculation that CI-1 was referring to someone other than the defendant as the cocaine source when CI-1 said the source may have been arrested at a time when the defendant had not been arrested. The mere fact that CI-2 had knowledge of the drug organization, but failed to mention the defendant in conversation with the agent, was not exculpatory.

Evidence that the defendant made threats to cooperating witnesses was admissible under 404(b) and not violative of 403, despite the defendant's
contention that the evidence was too ambiguous and prejudicial.