In U.S. v. Dulcio, No. 04-13838 (March 8, 2006), the Court affirmed convictions and sentneces for drug-trafficking.
The defendants argued that the district court erred in admitting expert testimony from a government agent that people who go to pick up a shipment generally know whether or not the shipment contains illegal drugs. The Court recognized a Circuit split on whether the admission of this expert testimony is error, and declined to reach the issue, finding that any error would have been harmless in light of the strength of the government’s evidence.
The Court did find error in the admission of "lay opinion testimony" of one agent concerning the modus operandi of people in the drug trade. The Court noted that Fed. R. Evid 701 provides that lay witnesses may not opine based on specialized knowledge. However, any error was harmless, in light of the strength, again, of the government’s evidence.
The Court held that the defendants waived their "prosecutorial bad faith" attack on the indictment by failing to file a motion before trial.
The Court also rejected a challenge to the conspiracy jury instruction, which, the defendants claimed, should have instructed on multiple conspiracies. The Court found that the instruction given did not impair their ability to present a defense.
The Court rejected defendants’ argument that the district court should not have precluded defense counsel from asking the jury to draw two inferences during closing argument. The Court noted that the inferences were not supported by record evidence.
The Court also rejected a claimed Bruton error, in failing to sever trials. The Court noted that any Bruton error arising from the admission of a co-defendant’s statement was harmless, because other evidence indicated the defendant’s full participation in the conspiracy.
Finally, the Court found no Booker error at sentencing, because the district court stated that it would impose the same sentence regardless of the sentencing regime.
