Drug Conspiracy Convictions Affirmed

US v. Rios-Morales, 2017 WL 6625518 (10th Cir. 12/28/17): The Court affirms the defendant's convictions related to a drug conspiracy. The district court properly allowed testimony regarding the defendant's involvement in a prior drug conspiracy in which the defendant traveled from Kansas to California to obtain drugs. The testimony was relevant under FRE 404(b) to prove defendant's motive to initiate the charged conspiracy as a new source of supply after the prior conspiracy ended and was relevant to prove the defendant's knowledge that the car left at his apartment by the witness and defendant's brother contained drugs and whether defendant intended to possess the drugs. The evidence was not unfairly prejudicial. The defendant raised as plain error numerous alleged instances of prosecutorial misconduct. These included: Defendant contended that the prosecutor's argument that the $300 per pound the defendant would make was a lot of money to someone paying child support argued facts not in evidence. However, a government exhibit included information about defendant's child support payments, so the prosecutor could properly refer to it. The AUSA's argument that "the only reason this conspiracy is going on is because of one person. Jose Rios-Morales" was not improper even though two other people were involved. In context, it referred to the trial testimony that defendant initiated the conspiracy. The prosecutor's reference to defendant's employment records as corroboration of a witness's testimony regarding the travel dates was not improper bolstering of the witness's credibility. It was not plainly improper vouching for the AUSA to argue that the jury could infer the witness was telling the truth because, among other things, the defendant engaged in counter-surveillance measures. It was not improper for the prosecutor to refer to the prior conspiracy without also reminding the jury of the limited purpose for admission of that evidence. Neither these nor the other claims satisfied the plain error standard. The Court rejects the defense argument that he should have been granted a mistrial based on the key government witness's alleged misrepresentations and omissions in his testimony. Basically, the Court says the witness did not lie and the defense was able to elicit all the necessary relevant testimony. Finally, the defendant asserted that the Court mishandled an incident that could have been construed as attempted witness intimidation when an unknown man was in the juror parking lot and made a couple of them nervous. The court questioned several jurors about the incident and directed them to park in a secure lot and to go to their cars in a group. The trial court did not abuse its discretion in concluding the jurors could be fair and impartial. Since there was no error, there was no cumulative error.