United States v. Lopez-Llamas
In United States v. Lopez-Llamas, No. 23-40239 (5th Cir. Sept. 23, 2024) (unpublished), the Fifth Circuit affirmed the defendant’s jury-trial conviction for conspiring to possess with the intent to distribute cocaine.
At trial, the Government proved that Llamas knew a cartel cocaine supplier and make frequent trips across the U.S.-Mexico border with him, that Llamas sought help in distributing cocaine in Dallas, and that Llamas and two confidential sources discussed an attempt drug deal (although no drugs were found at that time). Llamas testified that he had never been involved in drug trafficking, and he said he had feigned interest in the Government’s attempted drug deal as a way to recover a car that had been stolen from him. The jury convicted Llamas of two counts, but following the conviction, the district court realized Llamas had not been named in the first count of the indictment, so the court acquitted him of that count.
Holding 1: Llamas was not denied a fair trial simply because he was tried on a count with which he was not charged. On appeal, he failed to “specifically identify” any evidence that would have been inadmissible had he been properly tried on only one count. Although he was only charged with cocaine trafficking, Llamas’ trial included methamphetamine evidence. Even so, the Fifth Circuit did not find clear evidence that the methamphetamine evidence would have been inadmissible under Fed. R. Evid. 404(b), deciding instead that the meth evidence was “intrinsic” because the cartel commingled its operations.
Holding 2: There was no plain error in the Government asking Llamas about a sealed indictment against his wife and codefendant, allegedly imputing his wife’s guilt to him, or referring to an out-of-court conversation with Llamas in which the prosecutor had told Llamas that his wife was a fugitive.
Holding 3: Llamas waived any objection to admission of newspaper articles and press releases, so he cannot argue on appeal that their admission was error. At trial, Llamas’s counsel had agreed to preadmit those exhibits.
Holding 4: It was clear error for the Government to ask Llamas if other witnesses had lied, but Llamas failed to show that his substantial rights were affected. As a result, he failed to merit relief under the plain-error standard.
Holding 5: Llamas “effectively received all of the relief that he requested from the district court” regarding allegedly improper comments by the prosecutor about defense counsel’s integrity. At trial, the district court sustained Llamas’s objection to the first statement, and Llamas did not subsequently request a mistrial. And he did not object at all to the second allegedly improper comment.
Moreover, here the prosecutor “prosecutor criticized defense counsel’s allegedly flawed and misleading view of the dates in the indictment, not defense counsel’s integrity.” In this case and others, the Fifth Circuit has found no error in a prosecutor’s statement that defense arguments were a “trick,” “untruthful,” a “rabbit trial,” or a “red herring.” Those phrases are targeted at the defense’s arguments, not the integrity of defense counsel.