CA1: Jencks and hearsay

US v. Colon-Diaz, No. 06-2550 affirms a conviction in a drug case.  There are some interesting evidentiary issues

But the most interesting issues is a Jencks act violation.  The DEA agents destroyed the “rough” copies of their notes.  But, it wasn’t objected to at trial.  The First says that it isn’t plain error.

The First says that it is “context” (rather than hearsay) for a government informant witness to say that she was told to go to the defendant’s store, and it isn’t being offered for the truth that he actually owned the store.  The same goes for descriptions of the investigation that lead to the drug buys.  The judge seems to have been pretty careful about providing instructions on these issues.

The First explains that “In order to preserve an objection to the admission of a coconspirator statement under Rule 801(d)(2)(E), the defendant must ask the district court to make, at the close of the evidence, what is known as a Petrozziello determination. See United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977).”  And, as such, only the renewed parts of the objection can be reviewed for abuse of discretion (and the rest for plain error).