Errors Held to be Harmless; Escape a COV for Career Offender Purposes

U.S. v. Avalos, 2007 WL 3076918 (10/23/07)(published) - Even if admission of the defendant's admission of prior drug deals was an error, the error was harmless in light of three eyewitnesses identifying the defendant and the "dubious" credibility of the defendant's girlfriend's alibi testimony. It was okay to fail to hold an evidentiary hearing on whether the defendant's statements were obtained in violation of Miranda, because the defendant didn't request one.

Unsurprisingly, the 10th joins the other circuits in holding the government may designate a case agent responsible for an investigation as its representative under Fed. R. Evid. 615(2) so that the agent can listen to all the testimony. But, because the government did not designate the case agent as its representative, the d.ct. erred by failing to instruct him to leave the courtroom when the rule of exclusion was invoked. But, the defendant did not show prejudice under the plain error rule.

There was sufficient eyewitness evidence that the defendant was the person who engaged in the undercover drug deal. The defendant's generalized objection to factual conclusions in the PSR that laid out his guilt did not trigger the d.ct.'s duty to make a finding under Fed. R. Crim. P. 32(i)(3)(B). The 10th adheres to its precedent that escape from jail is a "crime of violence" for career offender purposes.