US v. Pinillos-Prieto, et al. Nos. 03-1566, 03-1627, 03-1628, 03-1772. Involves a few issues, by far, the most interesting war story is that the government cross-appealed and asked for a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A), but then conceded error, and the court remanded everything for a Booker remand.
But there were 1) Expert witness issues; 2) sufficiency arguments; 3) government conspirator issues; and 4) jury instruction issues. So read on.
Before trial, a defendant to exclude expert testimony regarding the topic of coded references to drugs and drug trafficking, on the ground that the government had not complied with its obligation to disclose expert testimony under Fed. R. Crim. P. 16(a)(1)(E) (2002)
But, the government didn’t move to qualify him as an expert under FRE 702. The first cites United States v. Ayala-Pizarro, 407 F.3d 25, 27 (1st Cir. 2005) (see our coverage here) to conclude that “It require[s] no special expertise for [an officer] to conclude, based on his observations, that places which sell drugs are often protected by people with weapons." And, the trial judge didn’t abuse his discretion under FRE 403.
Conspiracy with a government agent
As a rule, “*** there must be at least two true conspirators, and "government agents do not count." United States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987). But the District Court didn’t give such an instruction because “that the instruction is only applicable when the facts support the inference that the defendant and one or more government agents were the only participants in the agreement, and that scenario was not even the defense's theory of this case, let alone a reasonable inference from the facts.” Applying the “arguendo de novo” standard of review, the court holds that no matter what the facts, the lack of such an instruction was harmless.
Drug Quantity Instruction
The jury verdict form didn’t “incorporate certain standards found in the Sentencing Guidelines for determination of drug quantity in a reverse sting.” But, on plain error review, the First holds that such an error isn’t clear. But still, as I said above, the whole thing gets a Booker remand.
In this drug conspiracy case, the defendants apparently used the words “computers” instead of “kilos of cocaine.” But, the First pointed out that testimony showed that they were not talking about Compaq Presario laptops, but rather cocaine.
The evidence also supported the conspiracy conviction because despite some initial disputes the parties eventually came to an agreement.
Although the government couldn’t find the money, “ The jury was entitled to believe these statements, and to infer that the money was secreted somewhere unknown to the government.”