Checking References

United States v.Deandrade, No. 08-4815-cr (2d Cir. March 12, 201(Jacobs, Hall, CJJ, Murtha, DJ)

At Deandrade’s trial, two cooperating witnesses mentioned that he was incarcerated during his trial. The district court denied his mistrial motions, and on appeal, the circuit affirmed.

Deandrade argued that those references improperly impaired the presumption of innocence under Estelle v. Williams, 425 U.S. 501 (1976). The circuit disagreed, noting that in situations like this, several other courts have held that under Estelle “brief and fleeting references are generally allowed, but extended comment is impermissible.” The circuit agreed, holding that “a brief and fleeting comment on the defendant’s incarceration during trial, without more, does not impair the presumption of innocence to such an extent that a mistrial is required.”

There was accordingly no error here. The remarks were isolated, “apparently unintentional on the part of the prosecution,” incidental to legitimate questioning and the government did not refer to them again.

Deandrade also raised an interesting sentencing issue. He argued that his prior juvenile delinquency adjudication could not serve as a “prior conviction” to enhance his mandatory minimum under 21 U.S.C. §§ 841(b) & 851. The court did not decide the issue,however, since Deandrade’s sentence was higher than the mandatory minimum and it was clear from the record that the prior conviction did not affect the sentence in any way. But in a footnote, the court noted, “without comment” that the Third Circuit has held that a prior delinquency adjudication is not a “conviction” under these statutes.