Tuesday, October 18, 2011

Drug Conviction Reversed Because of Improper Admission of Prior Conduct Evidence

A few 10th Cir. cases, including a real nice defense victory, and S. Ct. cert grants.

First, the 10th:

U.S. v. Moncayo, 2011 WL 4822974 (10/12/11) (N.M.) (unpub'd) The 10th reverses a possession of cocaine with the intent to distribute conviction because the judge erroneously allowed the admission of evidence of the defendant's prior cocaine-related conduct. In the instant case, lots of cocaine base was found in this trailer where the defendant was also found. The defense was that the defendant did not live in that trailer, but lived somewhere else. The defendant did not contest the intent to distribute element of the charge. The judge, [after asking his law clerk on the record what he should do and then misinterpreting what she said, while she suggested they consult off the record,] admitted, pursuant to Rule 404(b), evidence that, 16 months before the events leading to the charge in this case, an officer saw the defendant reach under the hood of a car and drop something, which later was found to be a clear plastic baggie with several different baggies inside containing cocaine, packaging commonly used to ease the sale of drugs. The government sought the admission of this evidence to prove intent to distribute. But the prior-act evidence was minimally relevant for that purpose because there was no showing how the cocaine was packaged in this case, [The court held it against the government that the photo of the sock in which the cocaine was found, while admitted into evidence, was not made part of the record], and intent was not in dispute. This minimal probative value was substantially outweighed by the danger of unfair prejudice and confusion caused by the evidence. It impugned the defendant's character and portrayed him as a drug dealer who was likely to posses the cocaine in this case because he had possessed cocaine in the past. And the judge's limiting instruction wasn't limiting at all. It told the jury it could be used for all the purposes laid out in 404(b), not just the one purpose the government said it wanted it used for. The government did not prove the error harmless because, although it put on substantial evidence the defendant lived in the trailer where the cocaine was found, the defendant put on credible evidence he lived elsewhere. It was likely the jury used the prior-act evidence for improper propensity reasons.

Palmer v. Board of Commissioners for Payne County Oklahoma, 2011 WL 4867555 (10/14/11) (Okl.) (unpub'd) - The jail administrator's refusal to take the plaintiff prisoner to the hospital in accord with a doctor's directions to address a MRSA infection would constitute a constitutional violation, if proven. It's no excuse that the administrator did not know the plaintiff was suffering from MRSA. It's enough that a doctor said the plaintiff should be taken to a hospital if he developed increased pain. A prison official cannot ignore an inmate's complaints of pain just because they are subjective.

Mays v. Dinwiddie, 2011 WL 4866469 (10/14/11) (Okl.) (unpub'd) - Oklahoma might have used the wrong ineffective-assistance-of-counsel standard when it indicated the merits of the issue the attorney failed to raise didn't matter to the resolution of the ineffective assistance of appellate counsel issue. But no relief anyway.

Cert Grants:

Blueford v. Arkansas, 2011 WL 1595979 (10/11/11) - Would it be a violation of double jeopardy to retry the defendant on first degree murder where the jury announced it had vote unanimously against first-degree murder, but could not agree on the manslaughter offense?

U.S. v. Alvarez, 2011 WL 3626544 (10/17/11) - Does the Stolen Valor Act, 18 U.S.C. ยง 704(b), which criminalizes falsely representing that you have been awarded a Congressional medal of honor, violate the Free Speech Clause of the First Amendment?

Kiobel v. Royal Dutch Petroleum, 2011 WL 4905479 (10/17/11) - Whether the Alien Torture Statute allows tort liability for corporations.

Mohumad v. Rajoub, 2011 WL 3055314 (10/17/11) - Whether the Torture Victim Protection Act permits actions against defendants that are not natural persons, such as the PLO.