Prosecutor's remarks were improper, but prejudice was prevented by Court's prompt admonition

U.S. v. Serrato, 2014 WL 494828 (2/7/14) (Wyo.) (Published) - During counsel's cross of an agent about the agent not bringing in a recording, the prosecutor interrupted: "Counsel has every bit of discovery. If counsel wants to play the recording he can play it. It was not up to the agent to bring it." The Court says the remarks might have impermissibly suggested the defendants bore the burden of production because the Court refused to speculate jurors understood the legal process of discovery. Any prejudice was cured by the judge's immediate instruction that any suggestion the defendants had information they should reveal was improper. It would have been better if the district court sustained, rather than overruled, the defense objection to the prosecutor's statement that the defendants could have asked the agent certain questions if they wanted to. Once again the district court cured any prejudice, this time by immediately telling the jury the defense had no obligation to cross-examine.

The evidence was sufficient to establish one conspiracy, rather than two, where one meth supplier of one defendant helped that defendant sell meth provided by the other defendant. Even a one-time act will suffice if the nature and objectives of that conduct contributed to the larger conspiracy. The Court refused to decide if the district court erred by enhancing for importation because the range of 30 years to life would be the same even though the offense level would be different. There was sufficient evidence the co-defendant used and carried a firearm during drug trafficking where several witnesses testified to seeing him with a gun while involved in drug activity, even though the actual gun was never placed into evidence.

There was reasonable suspicion to suspect Mr. Serrato's van was involved in drug activity justifying a traffic stop where: officers knew from surveillance that out-of-state cars would come to the co-defendant's home to deliver meth and park in the garage; the officers had information a meth delivery would be made to go to Iowa on the date of the traffic stop; and on that date Mr. Serrato came to the home after a car with Iowa plates came and went.