United States v. Overton, No. 19-2574 (8th Cir. 2020)
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The Eighth Circuit affirmed defendant's conviction for conspiracy to manufacture, distribute, and possess with intent to distribute 100 grams or more of heroin. Defendant challenges, among other things, the district court's admission of dual-role testimony from an officer who interpreted recorded telephone calls as both a lay and expert witness.
The court held that it does not categorically prohibit dual-role testimony and when that testimony is presented in a concise and differentiated way so that there is no confusion, it may be admissible. However, in this case, the testimony at trial was not presented in a concise and differentiated fashion. The court concluded that, while portions of the officer's testimony constituted admissible expert testimony, other portions did not. The court further concluded that the officer's improper testimony did not have more than a slight influence on the jury's verdict and was therefore harmless.
The court also held that the evidence was sufficient to enable a reasonable jury to conclude that at least 100 grams of heroin was within the scope of the conspiracy and that defendant could have reasonably foreseen the extent of the conspiracy; the district court did not abuse its discretion by concluding that a buyer-seller instruction was not warranted by the evidence; to the extent the prosecutor's closing arguments strayed from the evidence, the error was not so obvious as to undermine the fairness, integrity or public reputation of the judicial proceedings; and a comment defendant contends disparaged his counsel did not rise to the level of plain error affecting his substantial rights.
Court Description: [Kelly, Author, with Erickson and Stras, Circuit Judges] Criminal case - Criminal law. Allowing the investigating officer to testify as both a lay witness and an expert on drug terminology is permissible when the testimony is presented in a concise and differentiated way so as to avoid any confusion, and the district court did not err in denying defendant's motion in limine to preclude such dual-role testimony; however,at trial the testimony was not presented in such a manner as the officer went beyond the drug jargon to translate ordinary English and provide opinions about the conversations; the error was harmless because it did not have more than a slight influence on the jury's verdict and was cumulative of other admissible evidence at trial; evidence was sufficient to show defendant conspired to distribute at least 100 grams of heroin; no error in denying defendant's request for a buyer-seller instruction; to the extent the prosecutor's closing arguments strayed from the evidence, the error was not so obvious as to undermine the fairness, integrity or public reputation of the judicial proceedings, and a comment defendant contends disparaged his counsel did not rise to level of plain error affecting substantial rights. [ August 18, 2020 ]
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