Tuesday, March 20, 2007

Court finds information alleging prior felony properly filed and served

In United States v. Rivas, No. 05-3380, (3d Cir. Mar. 12, 2007), the Third Circuit affirmed the defendant’s conviction for conspiring to distribute crack cocaine, finding no reversible trial error. The Court also affirmed the defendant’s 240-month sentence, rejecting Rivas’s claim that the government improperly filed and served the information charging a prior felony drug conviction pursuant to 21 U.S.C. § 851.

Rivas raised four trial errors on appeal. First, he argued that the district court erred in failing to strike a police officer’s testimony that Rivas was the target of a drug investigation. Rivas argued that the testimony was improper because it suggested to the jury that there was unseen evidence that the defendant had committed earlier, uncharged crimes. The Court held that because the government "at least suggested a possible legitimate reason for the question (to put the controlled buys in context)," any error was not plain, and because the government never referred back to the testimony, Rivas could not show that it affected the outcome of the trial. Second, Rivas claimed that the trial court erroneously allowed the prosecution to improperly vouch for its witnesses in opening and closing argument by arguing that they were telling the truth. The Court found no plain error because the prosecution did not refer to information outside the record to suggest that it knew its witnesses had testified truthfully.

The Court also rejected Rivas’s argument that by instructing the jury that the guilty pleas of alleged accomplices were not evidence of others’ guilt, the district court suggested that the pleas were evidence of the accomplices’ guilt, and, therefore, evidence of Rivas’s guilt since the accomplices pleaded guilty to conspiring with Rivas. The Court did not find the instruction to be plainly erroneous because the instruction explicitly informed the jury that the guilty pleas were not evidence of the defendant’s guilt, and Rivas had failed to demonstrate that the jury adopted his roundabout reasoning. Finally, the Court held that the district court did not abuse its discretion in failing to order a mistrial following the prosecutor’s comment that defense counsel’s "job is to take your focus off the issue." The Court explained that the rationale behind the rule against personal attacks on attorneys is similar to the rationale for the prohibition against vouching, and is therefore only implicated where the prosecution improperly argues about the defense counsel’s mental state "in a way not supported by the record evidence."

Rivas’s sentencing challenge was based on the district court’s denial of his motion to strike an information charging him with a prior drug felony conviction. Rivas argued that the information was not "filed" and "served" within the meaning of 21 U.S.C. § 851 because it did not bear an electronic signature and because his counsel had never received a mailed copy. The Court affirmed the trial court’s findings that any technical noncompliance with the local electronic filing rules was excusable and that the prosecutor had, in fact, mailed a copy of the information to defense counsel.

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