United States v. Johnson

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Argued: January 17, 2008

Before: JACOBS, Chief Judge, LEVAL and CABRANES, Circuit Judges.

Defendant-Appellant Ernest J. Walker appeals from conviction following a jury trial in the United States District Court for the District of Vermont (Sessions, C.J.) for conspiring to distribute 50 or more grams of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(a) and 846.Walker contends that his conviction is tainted by numerous instances in which the Assistant United States Attorney*fn1 (AUSA) elicited improper, prejudicial testimony by a Special Agent of the Drug Enforcement Administration (DEA). Although we agree with Walker that receipt of the agent’s testimony involved substantial and egregious evidentiary errors, we must review for plain error because there was no objection to the improper testimony. Under the plain error standard, we cannot say there was a miscarriage of justice, because the evidence of guilt was overwhelming, and the improper testimony, in our view, had no effect on the jury’s verdict. With strong disapproval of the government’s tactic and some misgivings, we therefore affirm the conviction.

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