US v. Isler et. al, Nos. 04-1565, 04-1566, 04-1673. The court holds that the government, in proving that the defendant conspired to possess cocaine and possessed cocaine can be proven with the fact that he was present near where the cocaine was found and the attendant circumstances. The court then goes into the facts, to concluded that the “facts surrounding Isler and Rashid's arrest permitted the jury to find that they were more than merely present.” (They includes drug paraphernalia, packaging, and an attempt to flush the stuff. “Further, the house was a fortress, with heavily reinforced doors and an extensive surveillance system....” and the defendants fled. Keep readin’, cowboy.
Now that you have kept reading, I should probably note that most Americans, even lawyers who have worked as prosecutors, or are members of the Federalist Society probably pass within 200 feet of illegal substances at least once a day. Many people in our great country are “holding.” Many trash cans have illegal substances in them. Even if you are pure as the driven snow, your neighbors, who live within 200 feet of you might not be. (Even if they are members of the Federalist Society, too.) So, while the First probably reaches the right result here, we shouldn’t be too quick to condemn all people found in the presence of contraband.
Next, the government filed a notice of intent to introduce prior convictions for impeachment, see Fed. R. Evid. 609. However, since he didn’t respond to the notice, and he was cross-examined on those convictions, the court goes right to harmless error analysis and concludes that the error was harmless.
An officer was allowed to testify regarding what a “drug house” look liked. The First, on plain error review, rejects this arguments because, he only testified, on cross, that the house looked like other houses that he raided. However, the First also notes that he misstated, on appeal, the substance of the officer’s testimony.
A prosecutorial misconduct claim fails because the court concludes that some remarks don’t constitute “improper vouching” for the credibility of the defendant.
The court discusses the difference between cocaine and cocaine base, but notes that “Second, this court has concluded that the term "cocaine base" in [21 U.S.C. ] Section 841(b) includes all forms of cocaine base (not simply crack).”
Two of the defendants get a Booker remand, because the judge said it would be a waste for them to get such harsh sentences, but the other doesn’t because he got a mandatory statutory life sentence, and Booker doesn’t apply to such mandatory minimums. At least not yet.