United States v. Walker, 06-0594-cr (2d Cir. June 19, 2008) (Jacobs, Leval, Cabranes, CJJ)
The evidence at Walker’s drug trial included: (1) recordings of two drug-related meetings with a cooperating co-defendant in which they discussed both past and future drug activity and in which the cooperator gave Walker money to pay for a previous shipment; (2) Walker’s two detailed confessions about his drug dealing activities; and (3) the testimony of four of his associates.
In addition, a DEA agent testified, and it was this testimony that was the subject of the appeal. Here, the circuit agreed that the government elicited “numerous” instances of “improper testimony” from the agent. This included: (1) highly prejudicial statements about the DEA’s investigation of Walker; (2) information the agent developed that “corroborated” Walker’s guilt, such as hearsay reports from other agents that drug customers had implicated Walker; (3) lengthy testimony that cooperating witnesses and other informants had confirmed Walker’s involvement in drug dealing, again, all of which was hearsay; (4) the agent’s unfavorable assessment of Walker’s character; (5) the agent’s vouching for the credibility of other witnesses; and, perhaps most shockingly, (6) his “personal assurance that the government’s entire case was reliable.” The agent also “several times asserted his own belief that” Walker was guilty and “made direct assertions about” Walker’s drug dealing as if the agent had witnessed the activity himself, when in fact he had not.
The circuit carefully cataloged these numerous improprieties, and rejected the government’s theory of admissibility, which was that this was all “background” testimony. Here, the testimony was not properly admitted as “background,” since there was no need for that “background” to implicate Walker directly. For example, the agent could have testified that a coconspirator explained the provenance of the drugs he was selling, without going on to explain that the coconspirator had implicated Walker. Accordingly, the portions of the “background” evidence that “prejudicially incriminated Walker” clearly violated Rule 403.
What is most shocking about this trial, however, is not the government’s dirty tactics. It is that the defense did not object to any of it. Thus, on appeal, Walker had to surmount the plain error standard. The circuit cut the defense a bit of slack – it recognized that the government “ambushed” it by carefully crafting questions that would not give advance warning that the agent’s answer would contain something improper. Accordingly, the defense often “did not have a fair opportunity to object until after the jury had heard the damaging matter, when it was already difficult to limit or cure the harm.” Nevertheless, the appellate court could not get past the fact that the defense let this all happen.
In the end, the court was genuinely torn as to whether it should reverse this conviction on plain error grounds. Here, the evidence “powerfully demonstrated the defendant’s guilt” and he did not “take steps to curtail the abusive practice.” On the other hand, the court did not want to “condone or reward an abusive disregard of the rules” by the government. In the end, it affirmed, in light of the overwhelming evidence of guilt. The court could not find plain error here, although it strongly hinted that it would have reversed if the testimony had been objected to.