Crack, Gun Convictions Affirmed; Evidentiary, Alleged Prosecutorial Misconduct Claims Rejected
United States v. Rogers, ___ F.3d ___, 2009 WL 514085 (10th Cir. 2009)
Defendant was convicted of possession of crack with intent and conspiracy, possession of firearm during the course of a drug offense, and felon in possession of a firearm.
(1) encounter between Defendant and cop outside hotel suite was consensual and not a seizure and therefore no 4th Amendment violation: it lasted only seconds, cop was alone, no threats by way of words, weapon use or behavior, cop and Defendant had encounters before at same hotel without incident, cop asked only if he could talk to Defendant.
(2) no abuse of discretion for trial court to not admit hotel log that showed a “Ricky Smith” checked out of hotel the day after Defendant was arrested–district court found that under the business records exception it was unreliable (court adopted govt argument it was a different log from that given to investigators and tendered at the suppression hearing). It was minimally probative because jury heard that a “Ricky Smith” checked out the day after Defendant was arrested.
(3) Sufficient evidence of conspiracy: Defendant’s cell phone in room with drugs, Defendant dropped something behind door inside room when cop came and it was packaged- for-sale crack, room was a stash room for sale of crack; of possession of guns during a drug crime: though loaded guns were in a night stand by bed in which co-Defendant was laying. Too boot, all evidence that showed conspiracy showed Defendant’s connection to gun, says Court(plus expert testimony that guns used in connection with stash places!!!!). Lame.
(4) Not plain error for government to say cop came into the hotel room with a cross on his belt ready to go into the belly of the beast–it was a single, isolated remark and general cautionary instructions were given–Defendant cannot show substantial rights affected. Prosecutor’s closing that there was no defense under the law for what Defendant did was not plain error–though Defendant argued it shifted the burden of proof, it was just argument that Defendant’s defense did not hold up. Prosecutor’s closing remarks appealing to community conscience to convict were harmless–case against Defendant was strong. (The prosecutor was allowed to get away with very bad behavior in this one).
Defendant was convicted of possession of crack with intent and conspiracy, possession of firearm during the course of a drug offense, and felon in possession of a firearm.
(1) encounter between Defendant and cop outside hotel suite was consensual and not a seizure and therefore no 4th Amendment violation: it lasted only seconds, cop was alone, no threats by way of words, weapon use or behavior, cop and Defendant had encounters before at same hotel without incident, cop asked only if he could talk to Defendant.
(2) no abuse of discretion for trial court to not admit hotel log that showed a “Ricky Smith” checked out of hotel the day after Defendant was arrested–district court found that under the business records exception it was unreliable (court adopted govt argument it was a different log from that given to investigators and tendered at the suppression hearing). It was minimally probative because jury heard that a “Ricky Smith” checked out the day after Defendant was arrested.
(3) Sufficient evidence of conspiracy: Defendant’s cell phone in room with drugs, Defendant dropped something behind door inside room when cop came and it was packaged- for-sale crack, room was a stash room for sale of crack; of possession of guns during a drug crime: though loaded guns were in a night stand by bed in which co-Defendant was laying. Too boot, all evidence that showed conspiracy showed Defendant’s connection to gun, says Court(plus expert testimony that guns used in connection with stash places!!!!). Lame.
(4) Not plain error for government to say cop came into the hotel room with a cross on his belt ready to go into the belly of the beast–it was a single, isolated remark and general cautionary instructions were given–Defendant cannot show substantial rights affected. Prosecutor’s closing that there was no defense under the law for what Defendant did was not plain error–though Defendant argued it shifted the burden of proof, it was just argument that Defendant’s defense did not hold up. Prosecutor’s closing remarks appealing to community conscience to convict were harmless–case against Defendant was strong. (The prosecutor was allowed to get away with very bad behavior in this one).
posted by Anonymous at 10:21 AM
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