United States Of America v. Figueroa-Lope

125 F.3d 1241 (9th Cir. 1997)

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Nature of the Case

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Facts

Federal agents arrested Darryl and he and others were charged with conspiracy to distribute cocaine and marijuana and with money laundering. Storm agreed to cooperate with the government and provided agents with a list of narcotics traffickers known to him. This list included Lopez. Storm contacted Lopez to explore whether Lopez would sell him some narcotics. Storm and Lopez met, and the agents tried to record the meeting, but the audio tape malfunctioned. According to Storm, Storm told Lopez that he wanted to buy 5-10 kilograms of cocaine. Storm taped a subsequent meeting on the telephone during which Lopez offered to sell 10 kilos of cocaine to Storm for $170,000. They used code words to signify the transaction. Storm met again face to face, and the audio tape malfunctioned again, and Lopez gave Storm a sample of cocaine. They spoke several times by phone, and these conversations were recorded. They met to exchange the drugs, and when Lopez produced a kilo of cocaine, the agents arrested him. In the other car at the scene, they found nine more kilos of cocaine. During the trial, the government presented opinion testimony by law enforcement officers as to the fact that from Lopez's conduct he was an experienced drug dealer. Lopez objected claiming that this was improper expert testimony and was improper opinion testimony and that no notice of this testimony was given under FRCP. The court overruled the objections and let the testimony in as lay opinion testimony. The court also overruled without explanation the testimony of an agent that said that Lopez's actions were counter surveillance and a common practice for drug dealers and that use of a rental car was indicative of an experienced narcotics trafficker. Lopez claimed that he was an innocent dupe that lost $5,000 in a bad loan to purchase a van. Eventually, the guy who owed him the money introduced him to Storm as a way to repay the debt. Lopez claimed he was shocked when Storm proposed the deal but eventually he agreed to the transaction as a way to get his money back. When pressured for a sample he got some from a friend named Manny who would supply all the cocaine for the entire deal and that Manny had instructed Lopez on how to do the deal. This was overruled as hearsay evidence. In closing statements, the prosecutor continually referred to Lopez as an experienced drug trafficker. He was convicted and appealed.