Friday, December 18, 2009

Court Rejects "Reverse 404(b)" Testimony; Affirms "de facto" Career Offender Sentence

US v. Myers: Myers was convicted of several drug charges after trial and sentenced to 360 months in prison. At trial, Count Five involved an alleged sale of cocaine to a confidential informant who was "working off" an earlier charge for selling cocaine. When cross examined about that charge, the CI admitted to it, but took issue with several details about his behavior in the criminal complaint. The CI's testimony was the only evidence that the transaction took place (no video, I guess). Pursuant to a Government objection, Myers was precluded from calling several police officers to impeach the CI's testimony about those details. At sentencing, Myers was subject to a mandatory minimum of 120 months, but a Guideline maximum of only 121 months. However, the district court agreed with the Government that Myers was a "de facto career offender," departed upward, and imposed a sentence of 360 months.

On appeal, Myers challenged both his conviction on Count Five as well as his sentence. The Fourth Circuit upheld both. As to the conviction, the court rejected Myers's argument that the evidence he sought to introduce about the CI was "reverse 404(b)" evidence about the CI's other crimes or acts. The court held that the evidence had already been presented to the jury during cross examination and the district court did not abuse its discretion in concluding it was of limited probative value. As to the sentence, the court concluded that it was both procedurally and substantively reasonable, holding that the district court's reliance on Myers's criminal history was "thoroughly articulated" and was not an abuse of discretion.

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