U.S. v. Yeley-Davis, 2011 WL 167249 (1/20/11) (Wyo.) (Published) - Phone company cell phone records are not testimonial and therefore not governed by Crawford's interpretation of the Confrontation Clause. The records were kept for business purposes, not for litigation. More troublingly, the 10th holds that the certification and affidavit signed by the record's custodian is also not testimonial. Even though the authentication was prepared for the purpose of prosecuting the defendant, it "is too far removed from the principal evil at which the Confrontation Clause was directed" because its purpose was to authenticate, not to prove some fact at trial [?].
A notebook and a photo of the contents of a cell phone were admissible, even though the agent who collected the notebook and cell phone did not testify. The evidence of chain of custody need not be perfect and was sufficient here, especially since the evidence was "unique, readily identifiable and relatively resistant to change." It was error to admit officer expert testimony about how cell phone towers work because the court did not make any gatekeeper findings regarding the officer's qualifications and the testimony's reliability. But the error was harmless because the testimony was only relevant to 3 of 87 phone calls. The d. ct. did not abuse its discretion in permitting the government to use a photo chart that featured what the government claimed were members of the conspiracy with a box labeled "customers" at the bottom of the chart. It wasn't too prejudicial, in light of its usefulness to the jury to keep straight who was who and the judge's cautionary instructions.
The defendant's prior conviction for passing methamphetamine into a jail qualified as a felony drug offense under 21 U.S.C. ยง 82(44) triggering a mandatory life sentence. Although the statute of conviction included sneaking liquor into jail, the records indicated the defendant had smuggled meth. The life sentence for a recidivist drug offender was not cruel and unusual.
U.S. v. King, 2011 WL 149974 (1/19/11) (Okl.) (Published) - There was sufficient evidence of the defendant's possession of a firearm in furtherance of drug trafficking where a rifle was found with marijuana in the trunk of his girlfriend's car to which he did not have a key. The defendant did not have to have control of the "premises" where a firearm is found to constructively possess the firearm. He may exercise power over the firearm through others, in this case, his girlfriend. By the defendant's admission, he had an intimate relationship with his "baby's mama" and a jury could infer the defendant could have accessed the rifle by asking his girlfriend for the key. Plus, the defendant admitted owning the rifle and there was a photo of the defendant holding what "appeared to be" the rifle. The 10th rejects the notion that specific intent to possess a firearm is an element of the offense. Because the rifle was found immediately adjacent to the drugs, a reasonable jury could infer it furthered the defendant's drug trade by protecting him and his merchandise. The government did not have to show the rifle, [which, because of its size, couldn't be carried around everywhere], was accessible at all times. It was enough that it would be available during a drug transaction when the defendant opened the trunk to get the marijuana.
U.S. v. Ellis, 2011 WL 135769 (1/18/11) (Okl.) (unpub'd) - The d. ct. was not required to consider post-sentence-rehabilitation at the resentencing. The case before the S. Ct.---Pepper v. U.S.----involves whether a d. ct. has discretion to consider that factor. So the 10th says that whatever the S. Ct. decides in Pepper would not affect the 10th's holding that a d.ct. has the discretion to ignore post-sentencing rehabilitation.
U.S. v. Minton, 2011 WL 135770 (1/18/11) (Wyo.) (unpub'd) - The state court's giving of 229 days of credit for time served means the defendant received 2 criminal history points, even though the state court suspended the rest of the sentence.
A notebook and a photo of the contents of a cell phone were admissible, even though the agent who collected the notebook and cell phone did not testify. The evidence of chain of custody need not be perfect and was sufficient here, especially since the evidence was "unique, readily identifiable and relatively resistant to change." It was error to admit officer expert testimony about how cell phone towers work because the court did not make any gatekeeper findings regarding the officer's qualifications and the testimony's reliability. But the error was harmless because the testimony was only relevant to 3 of 87 phone calls. The d. ct. did not abuse its discretion in permitting the government to use a photo chart that featured what the government claimed were members of the conspiracy with a box labeled "customers" at the bottom of the chart. It wasn't too prejudicial, in light of its usefulness to the jury to keep straight who was who and the judge's cautionary instructions.
The defendant's prior conviction for passing methamphetamine into a jail qualified as a felony drug offense under 21 U.S.C. ยง 82(44) triggering a mandatory life sentence. Although the statute of conviction included sneaking liquor into jail, the records indicated the defendant had smuggled meth. The life sentence for a recidivist drug offender was not cruel and unusual.
U.S. v. King, 2011 WL 149974 (1/19/11) (Okl.) (Published) - There was sufficient evidence of the defendant's possession of a firearm in furtherance of drug trafficking where a rifle was found with marijuana in the trunk of his girlfriend's car to which he did not have a key. The defendant did not have to have control of the "premises" where a firearm is found to constructively possess the firearm. He may exercise power over the firearm through others, in this case, his girlfriend. By the defendant's admission, he had an intimate relationship with his "baby's mama" and a jury could infer the defendant could have accessed the rifle by asking his girlfriend for the key. Plus, the defendant admitted owning the rifle and there was a photo of the defendant holding what "appeared to be" the rifle. The 10th rejects the notion that specific intent to possess a firearm is an element of the offense. Because the rifle was found immediately adjacent to the drugs, a reasonable jury could infer it furthered the defendant's drug trade by protecting him and his merchandise. The government did not have to show the rifle, [which, because of its size, couldn't be carried around everywhere], was accessible at all times. It was enough that it would be available during a drug transaction when the defendant opened the trunk to get the marijuana.
U.S. v. Ellis, 2011 WL 135769 (1/18/11) (Okl.) (unpub'd) - The d. ct. was not required to consider post-sentence-rehabilitation at the resentencing. The case before the S. Ct.---Pepper v. U.S.----involves whether a d. ct. has discretion to consider that factor. So the 10th says that whatever the S. Ct. decides in Pepper would not affect the 10th's holding that a d.ct. has the discretion to ignore post-sentencing rehabilitation.
U.S. v. Minton, 2011 WL 135770 (1/18/11) (Wyo.) (unpub'd) - The state court's giving of 229 days of credit for time served means the defendant received 2 criminal history points, even though the state court suspended the rest of the sentence.
posted by Anonymous at 2:40 PM
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