Prosecutorial Misconduct for AUSA to Introduce "extensive evidence" of Uncharged Drug Use and Transactions -- Even Under Plain Error Standard

United States v. Morena, No. 07-1297 (Nov. 19, 2008). Morena appealed his conviction for felon-in-possession and possession of an unregistered, sawed-off shotgun. He appealed on several grounds, but prevailed on his claim that the government’s injection into the trial of extensive evidence of uncharged drug use and transactions, as well as evidence of his prior non-felony convictions, amounted to prosecutorial misconduct and plain error.

There is great language in this opinion about the prosecutor’s duty as the representative of a sovereign, the danger of admission of uncharged misconduct, the sufficiency of evidence in gun prosecutions, and the limited value of curative instructions.

The district court had approved the admission of a limited amount of drug evidence under 404(b) to show motive and to set the context for the arrest. As the Court wrote, however, "the government repeatedly exceeded its pretrial proffer, systematically injecting inadmissible drug evidence into the two-day trial." Indeed, the district court admonished the government repeatedly over the presentation of such evidence: serious heroin dealing not connected to Morena (twice); violation for probation due to drug use; and history of drug use (three times).

The government attempted to defend the conviction on the basis that the evidence of Morena’s guilty was "firm and sufficient." The Court found that the evidence "boil[ed] down" to the testimony of one witness who had "credibility issues," and "a few pieces of circumstantial evidence." The Court noted that, "[i]n such a case, improper suggestions and insinuations ‘are apt to carry much weight against the accused when they should properly carry none.’"

The Court was also critical of the district court’s limiting instructions. Only one was given during trial. After its initial reprimand, the district court halted testimony to advise the jury to remember that Morena was on trial for guns not drugs. In its jury instructions, the court repeated, "[Morena] is only on trial for these two counts and no other criminal conduct that has been mentioned or alluded to." The Court characterized these instructions as weak, AND added "[m]oreover, even a very strong jury instruction to disregard a prosecutor’s conduct may nevertheless result in a denial of due process where, as here, the evidence is marginal and the prejudicial conduct significant."

Great win by Renee Pietropaolo of the Federal Public Defender for the Western District of Pennsylvania.

NB: The Court also gives a several-page reminder that conflict of interest and ineffective assistance claims are generally not cognizable in the first instance on direct appeal.

On the sufficiency issue, check out the recent Ninth Circuit decision in United States v. Perez, in which the Court reverses a gun conviction because, "[w]here there is an innocent explanation for a defendant’s conduct as well as one that suggests the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one." Note that the defendant in Perez was found sleeping with one gun in his lap and another leaning against his knee! For more, see http://circuit9.blogspot.com/