Drug conspiracy trials are often complex, much more difficult to defend against than they are to prosecute. The prosecution need only show that two or more people agreed to commit an illegal act associated with illicit drug possession, distribution or trafficking. This works to the prosecution’s advantage because conspiracies punish individuals who agree to commit a crime, even though the actions they may take in furtherance of the conspiracy are not per se illegal. Federal prosecutors prefer to charge drug conspiracy because the evidentiary rules work in their favor—use of indirect evidence to prove the conspiracy and needing to prove the conspiracy with only circumstantial evidence.


Prosecutorial Shortcuts to Convict in Drug Cases


Prosecutorial misconduct is not uncommon in drug conspiracy cases. In the introductory paragraph of her 2016 Iowa Law Review article, “The Investigation Narrative: An Argument for Limiting Prosecution Evidence,” Villanova Law School Professor Anne Bowen Poulin said that “a prosecutor, faced with the burden of proving guilt beyond a reasonable doubt, wants to present a compelling narrative that will draw the jurors inexorably to a verdict of guilty. To that end, prosecutors are often tempted to go beyond using admissible evidence to incrementally build the case against the defendant. Instead, they employ evidentiary tactics that provide shortcuts designed to prime the jury for conviction. In addition, prosecutors seek to frame the defendant’s actions through the lens of law enforcement, telling the jury why and how law enforcement identified and pursued the defendant. But this investigation narrative has little legitimate probative value and threatens to unfairly prejudice the defendant. Nevertheless, the courts often give prosecutors license to present this narrative, priming the jury for conviction.”


Prosecutorial Tricks, Prosecutorial Misconduct


The Fifth Circuit Court of Appeals has over the past decade cautioned prosecutors about using these improper tactics and has instructed trial judges not to let them be employed, especially in drug conspiracy cases. These cautions notwithstanding, prosecutors in the Southern District of Texas not only employed the law enforcement narrative but did it to such a degree that the Fifth Circuit labeled the tactics as “prosecutorial misconduct.”


In a July 25, 2018 decision, United States v. Sosa, the appeals court said that despite its “repeated warnings,” prosecutors in the Sosa case led an “expert witness” (a DEA agent) from the bounds of permissible testimony “into the forbidden territory” where the jury is the ultimate “trier of fact.” The appeals court specifically noted that:


“Agent Bradford’s testimony stepped well past the ‘fine but critical line’ between ‘expert testimony concerning methods of operation unique in the drug business, and testimony comparing a defendant’s conduct to the generic profile of a drug courier.’ Bradford began with acceptable testimony describing the typical rules within a drug trafficking organization, such as the couriers, the wholesalers, and the distributors. But the testimony invaded the province of the jury when Bradford began matching those roles to individuals in the case, including the defendant …’


Agent Compared Generic Profiles to Defendant


And as if this was not enough, prosecutors bolstered the testimony of co-conspirators who testified against the defendant by telling jurors that the co-conspirators had entered into plea agreements with the government, an agreement that required them to provide “truthful testimony” against the defendant. The appeals court said this tactic had the effect of putting the “prosecutor’s and judge’s stamp of approval” on the testimony of the co-conspirators and thereby effectively amounted to “improper bolstering.”


Testimony About Agreement to Testify Truthfully Improper Bolstering


Sosa was convicted in October 2016 of conspiring to possess and possessing with intent to distribute three kilograms of methamphetamine. In April 2017, he was sentenced to 360 months in a federal penal facility followed by five years of supervised release after discharge from penal custody.


Defense Attorney Fails to Object


Oscar Sosa will have to serve his sentence because his attorney, for whatever reason, did not object to the egregious prosecutorial misconduct engaged in bygovernment attorneys. While the Fifth Circuit examined the misconduct under its “plain error” doctrine, the court said Sosa had failed to prevail under this strict standard of review. The court closed its opinion with this observation:


“Today’s outcome is the same as many of our prior decisions addressing drug profiling testimony and bolstering of witnesses: we find that the government engaged in misconduct but nevertheless conclude the defendant cannot meet the heavy burden of obtaining reversal for error he did not object to during trial. If the ultimate end of prosecution is securing convictions, it may not be surprising that this trend has not deterred these improper trial tactics. Of course, winning is not supposed to be a prosecutor’s lodestar. Striking ‘hard blows’ but not ‘foul one’ in pursuit of justice is. Fidelity to that higher calling would prevent us from seeing these errors yet again.”


While we endorse this observation, it leaves a bad taste in the mouth to know Oscar Sosa will spend the next 30 years in prison because his defense attorney failed to object to the prosecutorial misconduct.