United States v. Andasola, No. 19-1482 (10th Cir. 2021)
Annotate this CaseJose Burciaga-Andasola appealed his convictions for distributing methamphetamine and heroin, arguing that the district court violated Federal Rule of Evidence 605 by improperly testifying as a witness during his jury trial. Andasola’s convictions arose from a February 2017 drug deal: an FBI informant called Andasola, asked to buy three ounces of heroin, and planned to meet up with Andasola later in the week. During this call and others, Andasola discussed the product he was selling using coded language; the meeting was recorded using a hidden camera. The informant delivered packages he received from Andasola to an FBI agent. When weighed and tested, these packages held about two pounds of methamphetamine and half a pound of heroin. Three weeks later, in another recorded meeting with the informant and an undercover agent, Andasola collected payment for the earlier drug deal and discussed prices for future deals. At trial, the government presented testimony from law enforcement in addition to the informant’s phone calls with Andasola arranging the drug deal, hidden-camera video of both the drug deal and the later meeting with the undercover agent to collect payment, and transcripts of and screenshots from the audio recordings and the hidden-camera videos. Andasola testified in his own defense. On cross-examination, Andasola at times suggested that he did not remember the events shown in the video, testifying at one point that though it looked like he was in the videos, Andasola asserted the “video’s been changed” to look like he handed the packages to the informant, which he “never did.” Because defense counsel’s question as to the differences Andasola observed “between that video and this video” implied that there were two videos, the government asked the district court to instruct the jury that there was only one video. In the end, the jury convicted Andasola of both offenses, and the district court imposed concurrent 150-month prison sentences and a five-year term of supervised release. The Tenth Circuit Court of Appeals agreed that the district court erred, but that the government established the error was harmless beyond a reasonable doubt. Therefore, Andasola's convictions were affirmed.
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