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United States v. Andasola.

No. 19-1482.  D.Colo. Judge Moritz. Fed.R.Evid. 605—Judge’s Testimony—Harmless Error.

September 13, 2021

Defendant engaged in a drug deal with an FBI informant that was documented by video footage from the informant’s hidden camera. Three weeks later another recorded meeting was held with the informant, defendant, and an undercover agent at which defendant collected payment for the earlier drug deal and discussed prices for future deals. Defendant was charged with distributing or possessing with intent to distribute 50 grams or more of methamphetamine, and distributing or possessing with intent to distribute 100 grams or more of heroin.

Defendant testified in his own defense and questioned the accuracy of the video and claimed it had been altered. Defendant’s testimony about differences between the video played for the jury and the one produced in discovery triggered a sidebar conversation with the district court, outside the jury’s hearing. Defense counsel acknowledged that there was only one video but stated that defendant believed he had seen a different video. The court granted the government’s request to instruct the jury that there was only one video. The jury convicted defendant as charged.

On appeal, defendant argued that the district court committed reversible error in violation of Fed.R.Evid. 605 when it instructed the jury that, contrary to defendant’s testimony, there was only one video. Rule 605 prohibits a presiding judge from testifying as a witness at a trial. Here, the district court violated Rule 605 by deciding for the jury the disputed factual issue of whether there were two videos. However, the error was harmless beyond a reasonable doubt because (1) the jury was not required to find that defendant physically handled the drugs to convict him of distribution, and (2) the weight of the other evidence against defendant regarding possession was overwhelming.

The convictions were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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