Drug Conviction Affirmed; Agent's "Expert" Testimony Ok'd; Prosecutor's Misstatements of Evidence in Closing Did Not Warrant Reversal; Defendant Waived Counsel for Sentencing

U.S. v. Vann, 2015 WL 221618 (1/16/15) (N.M.) (Published) (slip opinion here) - The 10th affirms a PCP conviction overseen by 10th Circuit Judge Kelly, sitting as a district judge by designation. Agent Small found on the train bottles of codeine without labels and bottles with PCP inside a gift-wrapped box Mr. Vann was carrying. Mr. Vann told the agent he knew there was codeine, but he did not know the box contained PCP bottles. At trial the parties disputed whether Mr. Vann knew he possessed the bottles of PCP. First, the 10th affirms a denial of a Batson challenge on the grounds that the judge's "streamlined" ruling was sufficient. The government justified its excusal of the only black venire member for the trial of a black man on the grounds that the juror didn't completely fill out his questionnaire, was not educated enough, was unemployed and seemed dazed and disengaged during voir dire. Before hearing from the defense, the court found these "were nonracial reasons that made sense." The defense contended the juror was attentive, not dazed. The court rejected the challenge without addressing the demeanor issue. After trial the defense renewed its Batson challenge pointing out the excused juror had two years of college and there was a non-black person who became a juror who was also unemployed and didn't fill out everything on the questionnaire. The defense argued the court had not made a Batson third-step discrimination finding. The district court ruled its "made sense" finding was implicitly the requisite finding. It did not make a finding on the demeanor or comparative-juror analysis except to say the latter didn't make a difference. Importantly for future reference, the 10th thought the defense should have laid out all its Batson case by the end of jury selection. At that point in time the defense had only challenged one of the 4 reasons the government gave for its excusal. Nonetheless the 10th went on to hold, in conflict with other circuits, as the 10th recognized, that 10th precedent does not require an explicit discrimination finding. The 10th was satisfied that the court engaged with the evidence presented by both sides, as it was required to do, even though it didn't explicitly do so, essentially because judges are presumed to know the law. That should take care of most defense complaints. In a footnote the 10th also says a trial court doesn't even necessarily have to give the defense a chance to support its Batson challenge, as long as the judge considers all the relevant matters.

Second, the 10th held that Agent Small's testimony that PCP wholesalers do not typically package PCP for buyers [thus indicating Mr. Vann, who was a buyer, must have packaged the PCP] was based on reliable data primarily because the agent was familiar with drug dealers in general and the district court vetted Small through a pretrial Daubert hearing and at trial, providing an opportunity for counsel to present their cases why Small should or should not testify. The 10th says the agent had "numerous PCP arrests as well." In fact, he testified he had 15 to 20 arrests over the course of 29 years and admitted the drug world changes often! The 10th treats an argument under the "Santa Muerte" case, Medina-Copete with little sympathy holding that excluding expert officer testimony in general, "is the exception, not the rule."

Third, the 10th essentially holds that it will never reverse a conviction due to prosecutors misstating facts in closing as long as there is an instruction that what attorneys say is not evidence. In this case the 10th has trouble even finding a misstatement. The prosecutors argued that if Mr. Vann only thought he had codeine he could have just taken a plane instead of a train. So he must have known he had PCP. Agent Small testified you could get a codeine bottle with a prescription label past TSA. He never testified you could get codeine bottles past the TSA without a label. And pretrial he testified he came across tons of people carrying codeine on the train. The 10th thought this was just arguing based on reasonable inferences from circumstantial evidence, not lying. "Given the abstract nature of mens rea, the 10th proclaims, this tactic is as uncontroversial as it is ubiquitous." The government's theory doesn't have to be "airtight." The 10th finds on its own that prescription medicines have a decent chance to get through airport security whether names are displayed on the bottles or not. Mr. Vann also challenged a prosecutor's claim in closing that ordinarily people found with a lot more serious drugs than they thought they had become upset and break down. On appeal the government admitted there was no evidence of that. The prosecutor compared the usual reaction of people to Mr. Vann's, which was only fake surprise, according to Agent Small. The 10th concluded that in context really the prosecutor was only describing Mr. Vann's reaction, not misstating evidence. That part about the other people was all in the imagination of the court reporter.

Fourth, Mr. Vann knowingly waived his right to counsel at sentencing because three months before the court allowed him to go pro se the court warned him about the dangers of going pro se at trial. When he was given those warnings Mr. Vann chose to keep his counsel. A contemporaneous thorough inquiry is sufficient but not necessary for a knowing counsel waiver. At the post-trial hearing the court listened to Mr. Vann's complaints about his trial lawyers and denied his request for new counsel and found that he was aware of the consequences of his pro se decision, the 10th says. Once again, the 10th notes it would have preferred a more comprehensive procedure. But the "ongoing dialogue with Mr. Vann" was good enough.